United States District Court, N.D. New York
Ronald Edward Williams, Pro Se, 05122-055 Terre Haute Federal Correctional Institution Terre Haute, Indiana,
MEMORANDUM DECISION AND ORDER
NORMAN A. MORDUE, Senior District Judge.
Plaintiff commenced the present action on April 15, 2013. In the words of the assigned Magistrate Judge in this matter, his "complaint is far from a model of clarity. It suggests that this action is commenced under Rule 7001 of the Federal Rules of Bankruptcy Procedure, but it fails to identify a related bankruptcy proceeding." Liberally construed, the complaint generally alleges that the United States engaged in a fraudulent transfer of plaintiff's property pursuant to 28 U.S.C. §§ 2041-2043, and that the transfer relates to a criminal action pending against plaintiff in this district. However, plaintiff neither paid the required filing fee nor submitted a motion for leave to proceed in forma pauperis ("IFP") with his complaint. Plaintiff filed a motion for IFP status on September 16, 2013.
Defendants' motion for IFP status was referred to the Hon. David E. Peebles, United States Magistrate Judge, for a Report-Recommendation pursuant to 28 U.S.C. § 636 (b) (1) (B) and Local Rule 72.3 (c). Magistrate Judge Peebles recommended that plaintiff's motion be denied. Plaintiff filed timely objections to the Report-Recommendation.
Pursuant to 28 U.S.C. § 636 (b) (1) (C), this Court engages in a de novo review of any part of a magistrate judge's report-recommendation to which a party specifically objects. Failure to object timely to any portion of a magistrate's report-recommendation operates as a waiver of further judicial review of those matters. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Secretary of Health & Human Serv., 892 F.2d 15, 16 (2d Cir. 1989).
II. FACTUAL BACKGROUND
The facts of this case are set forth in the Report-Recommendation prepared by Magistrate Judge Peebles which this Court adopts:
In this case, as of April 15, 2013, the date upon which this action was commenced, plaintiff had accrued three dismissals... qualifying as strikes under... [28 U.S.C. §] 1915 (g). Plaintiff accrued his first strike in Williams v. Annucci, No. 10-CV-0836 (N.D.N.Y. filed on July 9, 2010) (Hurd, J.). District Judge David N. Hurd dismissed the case, on December 6, 2010, upon finding that plaintiff's complaint, "as presented to the Court, cannot be supported by an arguable basis in law and must therefore be dismissed pursuant to 28 U.S.C. §§ 1915(e) (2) (B) and 1915A for failure to state a claim." Annucci, No. 10-CV-0836, Decision and Order (Dkt. No. 5) at 8. Plaintiff accrued his second strike in Williams v. Gould, No. 11-CV-1501 (N.D.N.Y. filed on Dec. 21, 2011) (Hurd, J.). In that case, Judge Hurd again dismissed plaintiff's amended complaint on July 31, 2012, pursuant to 28 U.S.C. §§ 1915 (e) (2) (B) and 1915A. Gould, No. 11-CV-1501, Decision and Order (Dkt. No. 13) at 7. Plaintiff accrued a third strike on January 14, 2013, when the Second Circuit dismissed his appeal in Gould, No. 11-CV-1501, "because it lacks an arguable basis in law or fact." Gould, 11-CV-1501, Mandate (Dkt. No. 18).
III. THE REPORT-RECOMMENDATION
Magistrate Judge Peebles recommends denial of plaintiffs motion for IFP status because plaintiff accrued three strikes under section 28 U.S.C. § 1915 (g) four months prior to filing the instant complaint, and thus is not permitted to proceed IFP in this action.
Plaintiff objects to the Report-Recommendation on the ground that venue and jurisdiction are "appropriate" in the "Bankruptcy Court." Notably, plaintiff does not raise any factual or legal objections to the Magistrate Judge's "three strikes" analysis.
Having conducted a de novo review of the record, the Court agrees with the determination of the Magistrate Judge that plaintiff's motion for IFP status should be denied for ...