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Hilson v. Beaury

United States District Court, N.D. New York

August 13, 2014

LEROME HILSON, Plaintiff,
v.
S. BEAURY, et al., Defendants.

LEROME HILSON, Pro Se Great Meadow Correctional Facility Comstock, NY For Plaintiff.

HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, ADRIENNE J. KERWIN, ESQ., Assistant Attorney General, The Capitol, Albany, NY, For Defendants.

REPORT AND RECOMMENDATION

DAVID E. PEEBLES, Magistrate Judge.

Pro se plaintiff Lerome Hilson, a New York State prison inmate, has commenced this action pursuant to 42 U.S.C. § 1983 against three employees stationed at the correctional facility in which he was confined at the relevant times alleging they violated his civil rights. In his complaint, Hilson contends that he was retaliated against for filing a grievance against a corrections officer who is not a defendant in this action, and was deprived of his First Amendment right to freely exercise his chosen religion when one of the defendants delayed in processing his request to change religions, and another defendant refused to permit him to attend religious education classes.

In response to plaintiff's complaint, defendants have filed a motion seeking dismissal of certain claims for failure to state a cause of action upon which relief may be granted. For the reasons set forth below, I recommend that the motion be granted, in part, but otherwise denied.

I. BACKGROUND[1]

Plaintiff is a prison inmate being held in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") and is currently confined at the Great Meadow Correctional Facility ("Great Meadow"), located in Comstock, New York, where the incidents forming the basis for his claims allegedly occurred. See generally Dkt. No. 1. Plaintiff's complaint asserts separate causes of action against Corrections Officers Beaury, Payne, and Ely, all of whom were stationed at Great Meadow at the relevant times, arising from three independent incidents.

A. Retaliation by Defendant Beaury

On March 25, 2012, while being escorted within Great Meadow, plaintiff became involved in a dispute with Corrections Officers Collins and Robinson, neither of whom is a named-defendant in the action. Dkt. No. 1 at 3. Although the details of the dispute are not relevant to this action, the disagreement, in general, stemmed from plaintiff's belief that Corrections Officer Collins harassed him without provocation, and Corrections Officer Robinson conducted an inappropriate pat-search of him. Id. On March 27, 2012, plaintiff submitted a grievance complaining of those corrections officers' actions. Id.; Dkt. No. 1-1 at 1-4.

According to plaintiff, his grievance against Corrections Officers Collins and Robinson triggered retaliatory actions taken by defendant Beaury against him. Specifically, on June 19, 2012, while plaintiff was performing his assigned duties preparing breakfast trays for inmates at the facility, defendant Beaury requested cereal from plaintiff for his personal consumption. Dkt. No. 1 at 3-4. Plaintiff informed defendant Beaury that all of the cereal available on the trays was reserved for inmates. Id. at 4. Defendant Beaury responded by yelling at plaintiff, using expletives, and adding, "Now write a Grievance on that.'" Id. Plaintiff alleges that, prior to this incident, defendant Beaury had harassed him with threats to retaliate against him for filing a grievance against Corrections Officers Collins and Robinson. Id.

As a result of that incident, defendant Beaury issued plaintiff a misbehavior report charging him with violating four prison rules. Dkt. No. 1 at 4. According to plaintiff, the misbehavior report was based on false allegations and issued in further retaliation of plaintiff's grievance against Corrections Officers Collins and Robinson. Id. at 3-4. As a result of the misbehavior report, plaintiff received thirty days of disciplinary keeplock confinement, and lost his prison job.[2] Id. at 4. Plaintiff maintains that, while he was confined in keeplock, defendant Beaury disconnected the electrical power in his cell and prevented him from eating for four days. Id.

B. Converting to Islam

In late June 2012, plaintiff submitted a formal request to defendant Payne, the Protestant Chaplain at Great Meadow, to change his religion from Protestant to Islam.[3] Dkt. No. 1 at 6. On August 2, 2012, defendant Payne wrote plaintiff a memorandum acknowledging his request to change his religion from Protestant to Islam, and attaching a form to be signed with an instruction to return it for processing to effectuate the change. Dkt. No. 1-1 at 75. Plaintiff submitted the completed form, entitled "CHANGE OF RELIGIOUS DESIGNATION FORM, " to defendant Payne on August 9, 2012. Dkt. No. 1-1 at 76. On August 14, 2012, defendant Payne also signed the form, and six days later the Chaplain of Islam at Great Meadow completed the form. Id.

Plaintiff alleges that, because he submitted his request to change religions in late June 2012, but did not receive a response from defendant Payne until August 14, 2012, he was precluded from participating in Islamic religious practices, including fasting during Ramadan and attending seven Juma prayer services. Dkt. No. 1 at 6. In support of their motion to dismiss, defendants have submitted a copy of DOCCS Directive 4202, which governs changes in inmate religious designations. Dkt. No. 15-1 at 14. According to that document, which is dated January 18, 2008, inmates could expect a request to change religions to be processed within thirty days.[4] Id. at 14.

C. Missed Call-Outs

The third set of circumstances giving rise to this action centers upon defendant Ely's failure to provide plaintiff with call-outs for religious education classes on "numerous" occasions, including, specifically, on October 13, 2012 and November 3, 2012. Dkt. No. 1 at 8. On those dates, defendant Ely was a block officer at Great Meadow whose duties included providing inmates with call-outs. Id. Plaintiff's grievance complaining of missing the call-outs on October 13, 2012, and November 3, 2012, was ultimately determined in his favor by the superintendent at Great Meadow on December 18, 2012. Dkt. No. 1-1 at 84-87.

II. PROCEDURAL HISTORY

Plaintiff commenced this action on May 28, 2013, and was thereafter granted leave to proceed in forma pauperis. Dkt. Nos. 1, 6. In his complaint, plaintiff asserts claims against defendants Beauty, Payne, and Ely, in their individual and official capacities, under the First and Eighth Amendments, and seeks damages as well as injunctive relief. See generally Dkt. No. 1.

On September 27, 2013, defendants filed a motion seeking dismissal of certain of plaintiff's claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 15. In their motion, defendants request dismissal of (1) all claims asserted against them for damages in their official capacities and (2) plaintiff's First Amendment free exercise claims asserted against defendants Payne and Ely. See generally Dkt. No. 15-1. In addition, while noting that plaintiff has failed to formally move for a preliminary injunction, defendants contend that plaintiff's complaint fails to satisfy the requirements for granting that relief. Id. at 5-7. Plaintiff has since responded in opposition to defendants' motion. Dkt. No. 17.

Defendants' motion, which is now fully briefed, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed.R.Civ.P. 72(b).

III. DISCUSSION

A. Standard of Review Governing Motions to Dismiss Pursuant to Rule 12(b)(6)

A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading using a standard which, though unexacting in its requirements, "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. lqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, "a pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief.'" lqbal, 556 U.S. 677-78 (quoting Fed.R.Civ.P. 8(a)(2)). While modest in its requirements, that rule commands that a complaint contain more than mere legal conclusions. See id. at 679 ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id.

In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Twombly, 550 U.S. at 555-56); see also Cooper v. Pate, 378 U.S. 546, 546 (1964); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003); Burke v. Gregory, 356 F.Supp.2d 179, 182 (N.D.N.Y. 2005) (Kahn, J.). However, the tenet that a court must accept as true all of the allegations contained in a complaint does not apply to legal conclusions. lqbal, 556 U.S. at 678.

To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" lqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); see also Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to nudge plaintiffs' claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 570) (alterations omitted).

When assessing the sufficiency of a complaint against this backdrop, particular deference should be afforded to a pro se litigant, whose complaint merits a generous construction by the court when determining whether it states a cognizable cause of action. Erickson, 551 U.S. at 94 ("[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (citation omitted)); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) ("[W]hen a plaintiff proceeds pro se, a court is obliged to construe his pleadings liberally." (quotation marks and alterations omitted)); Kaminski v. Comm'r of Oneida Cnty. Dept of Soc. Servs., 804 F.Supp.2d 100, 104 (N.D.N.Y. 2011) (Hurd, J.) ("A pro se complaint must be read liberally.").

B. Eleventh Amendment Immunity

As was noted above, the three named defendants in this action are sued in both their individual and official capacities. Dkt. No. 1 at 1-2. In their motion, defendants request dismissal of the damage claims asserted against them in their official capacities. Dkt. No. 15-1 at 3.

The Eleventh Amendment protects a state against suits brought in federal court by "private parties seeking to impose a liability which must be paid from public funds in the state treasury." Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); Cory v. White, 457 U.S. 85, 90-91 (1982); Ying Jing Gan v. City of N.Y., 996 F.2d 522, 529 (2d Cir. 1993). This absolute immunity, which states enjoy under the Eleventh Amendment, extends to both state agencies and state officials sued for damages in their official capacities when the essence of the plaintiff's claim seeks recovery from the state as the real party in interest. See, e.g., Daisernia v. State of N. Y., 582 F.Supp. 792, 798-99 (N.D.N.Y. 1984) (McCurn, J.) ("[A] suit which seeks a money judgment which must be paid from the state treasury is barred by the Eleventh Amendment, ' even though it is nominally asserted against an individual official." (quoting Edelman, 415 U.S. at 663)); see also Richards v. State of N.Y.App.Div., Second Dept, 597 F.Supp. 689, 691 (E.D.N.Y. 1984) ( citing, inter alia, Cory v. White, 457 U.S. 85, 89-91, (1982)). "To the extent that a state official is sued for damages in his official capacity, such a suit is deemed to be a suit against the state, and the official is entitled to invoke the Eleventh Amendment immunity belonging to the state." Ying Jing Gan, 996 F.2d at 529; see also Hafer v. Melo, 502 U.S. 21, 25 (1991) ("Suits against state officials in their official capacity therefore should be treated as suits against the State.").

Plaintiff's damage claims in this action against the named-defendants in their official capacities are, in reality, claims against the State of New York, and therefore are subject to dismissal. Daisernia, 582 F.Supp. at 798-99. Accordingly, I recommend that those claims be dismissed with prejudice.

While plaintiff's damage claims asserted against defendants in their official capacities are subject to dismissal, any claims for injunctive relief against them would not be precluded by the Eleventh Amendment, and, accordingly, could proceed. In re Deposit Ins. Agency, 482 F.3d 612, 618 (2d Cir. 2007) ("A plaintiff may avoid the Eleventh Amendment bar to suit and proceed against individual state officers... in their official capacities, provided that his complaint (a) alleges an ongoing violation of federal law and (b) seeks relief properly characterized as prospective."). In this case, however, plaintiff does not seek injunctive relief in connection with his first three claims. Dkt. No. 1 at 5, 6, 8. Because plaintiff's fourth cause of action is subject to dismissal, see Part III.D., post, there is no basis upon which plaintiff's claims against defendants in their official capacities may survive the pending motion.

C. Plaintiff's First Amendment Claims

At the center of defendants' motion to dismiss are plaintiff's First Amendment free exercise claims asserted against defendants Payne and Ely. Dkt. No. 15-1 at 3-5. Defendants contend that the claim against defendant Payne is subject to dismissal because "plaintiff has not alleged any reason for the delay in processing his request [to change his religious designation], and it can be assumed that any delay was for administrative purposes." Id. at 4. With respect to defendant Ely, defendants argue that, assuming defendant Ely did deny plaintiff an opportunity to attend religious education classes on two occasions, that is not sufficient to give rise to a cognizable First Amendment claim. Id. at 4. In his response, plaintiff reiterates the allegations set forth in his complaint, including with respect to his retaliation claim against defendant Beaury, which is not the subject of defendants' motion. See generally Dkt. No. 17.

1. Legal Principles Applicable to Free Exercise Claims

While inmates confined within prison facilities are by no means entitled to the full gamut of rights guaranteed under the United States Constitution, the free exercise clause of the First Amendment does afford them at least some measure of constitutional protection. See Pell v. Procunier, 417 U.S. 817, 822 (1974) ("In the First Amendment context... a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system."). The protections afforded under the First Amendment, however, are not without limits, and the task of defining the contours of that right in a prison setting requires striking a delicate balance between the rights of inmates and the legitimate interests of prison officials tasked with maintaining prison security. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348-49 (1987); Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003); Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990).

A plaintiff asserting a First Amendment free exercise claim must, as a threshold matter, "show... that the disputed conduct substantially burdens his sincerely held religious beliefs." Salahuddin v. Goord, 467 F.3d 263, 274-75 (2d Cir. 2006).[5] In evaluating this factor, the court must be wary of "question[ing] the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds.' McEachin v. McGuinnis, 357 F.3d 197, 201 (2d Cir. 2004) (quoting Hernandez v. Comm'r of Internal Revenue, 490 U.S. 680, 699 (1989)). Instead, a court should consider only whether the particular plaintiff has "demonstrate[d] that the beliefs professed are sincerely held and in the individual's own scheme of things, religious." Ford, 352 F.3d at 588 (quotation marks omitted). Once a plaintiff satisfies this burden, defendants must then "bear the relatively limited burden of identifying the legitimate penological interests that justify the impinging conduct." Salahuddin, 467 at 275. "[T]he burden[, however, ] remains with the prisoner to show that these penological concerns were irrational.' Ford, 352 F.3d at 595 (quoting Fromer v. Scully, 874 F.2d 69, 74 (2d Cir. 1989)) (alteration omitted).

At this juncture the court next inquires into whether a defendant's conduct, which allegedly deprives the plaintiff of his free exercise rights, is reasonably related to some penological interest. Ford, 352 F.3d at 594; see also Washington, 538 F.Appx. at 26 ("Even if Defendants-Appellees substantially burdened [the Plaintiff-Appellant]'s sincerely held religious beliefs, their actions do not constitute a constitutional deprivation if they were reasonably related to legitimate penological interests." (quotation marks omitted)). To determine whether a challenged regulation or decision by prison officials is reasonable, [6] courts must evaluate the following four factors:

[(1)] [W]hether the challenged regulation or official action has a valid, rational connection to a legitimate governmental objective; [(2)] whether prisoners have alternative means of exercising a burdened right; [(3)] the impact on the guards, inmates, and prison resources of accommodating the right; and [(4)] the existence of alternative means of facilitating exercise of the right that have only a de minimis adverse effect on valid penological interests.

Salahuddin, 467 F.3d at 274 (footnote omitted).

2. Plaintiff's Claim Against Defendant Payne

Plaintiff alleges that defendant Payne violated his First Amendment rights by delaying the processing of his request to change his religious designation. Dkt. No. 1 at 6. Plaintiff contends that as a result of that delay, he was unable to participate in some religious exercises, including fasting during Ramadan and attending prayer services on seven days. Id.

As was noted above, at the time of the incident, DOCCS Directive 4202, concerning religious programs and practices, contemplated that an inmate's request to change religions would be processed and acted upon within thirty days of the request.[7] Dkt. No. 15-1 at 14. In this instance, plaintiff alleges that he submitted his formal request to change his religion "[d]uring the end of the Month of June [2012]." Dkt. No. 1 at 6. The change was effectuated on August 20, 2012, after both defendant Payne and the Islam Chaplain at Great Meadow signed the necessary form. Dkt. No. 1-1 at 76. Thus, liberally construing plaintiff's complaint, he alleges that the delay in processing his request to change religions amounted to fifty-one days, from June 30, 2012, to August 20, 2012.[8] This delay is exactly three weeks beyond the thirty days contemplated in the version of DOCCS Directive 4202 in effect at the time.[9] Although defendants "assume[] that [the] delay was for administrative purposes, " nothing in plaintiff's complaint or elsewhere in the record supports this assumption. Dkt. No. 14-1 at 4. Defendants have otherwise neglected to offer any reason for the delay in processing plaintiff's request. Under these circumstances, and mindful of plaintiff's allegation that, as a result of the delay in processing his request, he was precluded from participating in Ramadan and attending seven prayer services, I find that plaintiff has alleged sufficient facts plausibly suggesting that his religious beliefs were substantially burdened by defendant Payne. Accordingly, I recommend that defendants' motion to dismiss the First Amendment claim asserted against defendant Payne be denied.[10]

3. Plaintiff's Claim Against Defendant Ely

In his third cause of action, plaintiff alleges that defendant Ely caused him to "[m]iss [n]umerous [c]all outs for [e]ducation [classes] in the Islamic [r]eligion, and [n]umerous congregational [p]rayers, " and specifically identifies October 13, 2012, and November 3, 2012, as dates on which he missed religious education classes. Dkt. No. 1 at 8. Although defendants are correct that allegations of two missed call-outs for religious programming over a period of three weeks is not constitutionally significant, [11] plaintiff alleges defendant Ely caused him to miss "numerous" classes and services. Because I am obligated to accept plaintiff's factual allegations as true at this stage of the proceedings, and because there is nothing in the record suggesting defendant Ely was justified in precluding plaintiff from his call-outs, I find that plaintiff has alleged a cognizable constitutional claim against that defendant. Accordingly, I recommend that the court deny defendants' motion to dismiss plaintiff's First Amendment claim asserted against defendant Ely.

D. Preliminary Injunction

In his complaint plaintiff seeks a temporary restraining order and preliminary injunction, but requests that relief by purporting to assert it as a distinct cause of action. Dkt. No. 1 at 9. A request for a temporary restraining order or preliminary injunction, however, is not an independently cognizable cause of action, but instead a form of interim relief. While a complaint may seek an injunction as a form of relief, any application for interim injunctive relief, pursuant to Rule 65 of the Federal Rules of Civil Procedure, must comply with the rules governing the local practice of this court. N.D.N.Y. L.R. 7.1(f), 65.2. The local rules require that a party seeking a temporary restraining order do so either by a notice of motion or order to show cause. N.D.N.Y. L.R. 7.1(f). Moreover, motions for a temporary restraining order or preliminary injunction must be supported by the submission of a memorandum of law and an affidavit. N.D.N.Y. L.R. 5.1(a), 7.1(a), (f). In this case, because plaintiff's request for injunctive relief is not an independently cognizable cause of action, and plaintiff has failed to comply with the rules governing motion practice, his "fourth cause of action" is ripe for dismissal.

In any event, even if I were to overlook the deficiencies accompanying plaintiff's request for injunctive relief, I would recommend it be denied. Plaintiff's request is directed toward anticipated, future retaliation by defendants "and/or their 3rd [p]arty actors." Dkt. No. 1 at 9. Because the relief plaintiff seeks is unrelated to the allegations contained in his complaint, his request should be denied. Ariola v. LaClair, No. 07-CV-0057, 2007 WL 1026365, at *1 (N.D.N.Y. Apr. 2, 2007) (Sharpe, J.); Chavis v. Ryan, No. 05-CV-0100, 2007 WL 446440, at *1 (N.D.N.Y. Feb. 7, 2007) (Scullin, J.). Moreover, plaintiff is also precluded from seeking injunctive relief against a non-party. Ariola, 2007 WL 1026365, at *1; Chavis, 2007 WL 446440, at *1.

For all of these reasons, I recommend that plaintiff's fourth cause of action be dismissed.

E. Whether to Permit Amendment

Ordinarily, a court should not dismiss a complaint filed by a pro se litigant without granting leave to amend at least once "when a liberal reading of the complaint gives any indication that a valid claim might be stated." Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir.1991); see also Fed.R.Civ.P. 15(a) ("The court should freely give leave when justice so requires."); see also Mathon v. Marine Midland Bank, N.A., 875 F.Supp. 986, 1003 (E.D.N.Y.1995) (permitting leave to replead where court could "not determine that the plaintiffs would not, under any circumstances, be able to allege a civil RICO conspiracy"). An opportunity to amend is not required, however, where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) ("Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice."). Stated differently, "[w]here it appears that granting leave to amend is unlikely to be productive, ... it is not an abuse of discretion to deny leave to amend." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, No. 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.). In this instance, the deficiencies identified in this report with respect to plaintiff's damage claims asserted against defendants in their official capacities are substantive in nature, and extend beyond the mere sufficiency of plaintiff's complaint. Accordingly, because I find that any amendment regarding those claims that might be offered by plaintiff would be futile, I recommend against granting him leave to amend.

IV. SUMMARY AND RECOMMENDATION

The portions of plaintiff's complaint seeking damages against the defendants in their official capacities, and a temporary restraining order and preliminary injunction, are subject to dismissal. Plaintiff's other claims, however, against defendants Payne and Ely in their individual capacities have been adequately pleaded, and are not subject to dismissal at this procedural stage.

Based upon the foregoing, it is hereby respectfully

RECOMMENDED that defendants' motion to dismiss (Dkt. No. 15) be granted, in part, and that plaintiff's damage claims asserted against the defendants in their official capacities, as well as his fourth cause of action, be DISMISSED, but that the motion otherwise be DENIED.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).

It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.

Christopher D. Ariola, Petitioner, pro se.

ORDER

GARY L. SHARPE, U.S. District Judge.

*1 This is a habeas proceeding, brought pursuant to 28 U.S.C. § 2254, challenging the validity of petitioner's convictions for manslaughter and attempted robbery. Docket No. 4. The Court recently ordered the amended petition served, and the re dent has not yet filed a response to the petition. FN1 Presently before this Court is a motion by the petitioner Christopher Ariola ("Ariola" or petitioner") for injunctive relief. Docket No. 7."

FN1. The respondent in this action is Darwin LaClair, the Superintendent of Great Meadow Correctional Facility where petitioner was incarcerated at the time this action was filed. The amended petition contains no challenges to petitioner's parole or the conditions thereof.

Petitioner's motion for a preliminary injunction seeks a injunction against the Division of Parole "estopping them from unconstitutional deprivations of liberty Id. In support of his motion for injunctive relief, Ariola states that the Division of Parole has imposed conditions on his living arrangements and have required him to pay a fee for a psychological assessment. Id.

The standard a court must utilize in considering whether to grant a request for injunctive relief is well-settled in this Circuit. As the Second Circuit noted in Covino v. Patrissi, 967 F.2d 73 (2d Cir.1992), the movant must show: (a) irreparable harm and (b) either (1) a likelihood of success on the merits of the claim or (2) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party seeking injunctive relief. Id. at 77 (affirming district court's denial of inmate's request for preliminary injunction); see also Roucchio v. LeFevre, 850 F.Supp. 143, 144 (N.D.N.Y.1994) (McAvoy, C.J.) (adopting Report-Recommendation of Magistrate Judge that denied inmate's request for injunctive relief).

However, the Court need not reach the merits of petitioner's motion because it is clear that the relief that petitioner seeks in his motion for injunctive relief is not related to the claims in his amended petition. See Chavis v. Ryan, 9:05-CV-100, 2007 WL 446440, at *1 (N.D.N.Y. Feb. 7, 2007). In addition, except in limited circumstances not relevant here, a court may not order injunctive relief as to nonparties to an action. See Fed.R.Civ.P. 65(d) (providing that "[e]very order granting an injunction... is binding only upon the parties to the action..."); Chavis, 2007 WL 446440, at *2 (citation omitted). The Division of Parole is not a party to the underlying habeas proceeding. Thus, this Court may not issue an injunction in this action with respect to any actions of the Division of Parole.

WHEREFORE, on the basis of the above, it is hereby

ORDERED, that petitioner's motion for injunctive relief (Docket No. 7) is denied, and it is further

ORDERED, that the Clerk serve a copy of this Order on the petitioner.

IT IS SO ORDERED.

George M. Chavis, Dannemora, NY, pro se.

Hon. Andrew M. Cuomo, Attorney General for the State of New York, Adele M. Taylor-Scott, Esq., Assistant Attorney General, of Counsel, Albany, NY.

DECISION AND ORDER

LAWRENCE E. KAHN, District Judge.

*1 This matter comes before the Court following a Report-Recommendation filed on January 28, 2008 by the Honorable George H. Lowe, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3 of the Northern District of New York. Report-Rec. (Dkt. No. 36). After ten days from the service thereof, the Clerk has sent the entire file to the undersigned, including the objections by Plaintiff George M. Chavis, which were filed on February 13, 2008. Objections (Dkt. No. 37).

It is the duty of this Court to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). "A [district] judge... may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. This Court has considered the objections and has undertaken a de novo review of the record and has determined that the Report-Recommendation should be approved for the reasons stated therein.

Accordingly, it is hereby

ORDERED, that the Report-Recommendation (Dkt. No. 36) is APPROVED and ADOPTED in its ENTIRETY; and it is further

ORDERED, that Plaintiff's in forma pauperis status is revoked as having been improvidently granted and that Plaintiff is given TEN (10) DAYS from the date of this Order to pay the Court's filing fee of $250. Should Plaintiff fail to make that payment, his Complaint will be dismissed without further order of this Court; and it is further

ORDERED, that the Clerk serve a copy of this Order on all parties.

IT IS SO ORDERED.

REPORT-RECOMMENDATION

GEORGE H. LOWE, United States Magistrate Judge.

This prisoner civil rights action, commenced pro se pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Lawrence E. Kahn, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Generally, Plaintiff's Amended Complaint alleges that, between July of 2005, and July of 2006, at Auburn C.F., and Great Meadow C.F., fourteen employees of the New York State Department of Correctional Services ("Defendants") violated his constitutional rights by retaliating against him or subjecting him to cruel and unusual prison conditions. ( See generally Dkt. No. 6 [Plf.'s Am. Compl.].) Currently pending before the Court is Defendants' motion to dismiss Plaintiff's Amended Complaint on the ground that the action is barred by the "three strikes" rule established by 28 U.S.C. § 1915(g). (Dkt. No. 31.) For the reasons that follow, I recommend that Defendants' motion be granted or, in the alternative, that Plaintiff's Amended Complaint be sua sponte dismissed as a sanction pursuant to Fed.R.Civ.P. 11 for making a material misrepresentation to the Court in his sworn pleadings about his prior litigation history.

I. ANALYSIS OF DEFENDANTS' MOTION

A. Acquisition of "Three Strikes" Warranting Dismissal

*2 Under the so-called "Three Strikes Rule" set forth in the federal statute governing in forma pauperis proceedings,

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g) [emphasis added]. Defendants are correct when they argue that the power of a federal district court to invoke this rule is not limited to the outset of a litigation but extends all throughout the pendency of the proceeding. (Dkt. No. 31, Part 13, at 2-3.) In other words, a federal district court has the authority to rescind or revoke the in forma pauperis status that it has previously bestowed upon a plaintiff, if the court discovers that the status had been improvidently granted.FN1

FN1. See, e.g., Eady v. Lappin, 05-CV-0824, 2007 WL 1531879, at *1 & n. 1 (N.D.N.Y. May 22, 2007) (Mordue, C.J., adopting Report-Recommendation by Lowe, M.J.); Gill v. Pidlypchak, 02-CV-1460, 2006 WL 3751340, at *5 (N.D.N.Y. Dec.19, 2006) (Scullin, J.); Polanco v. Burge, 05-CV-0651, 2006 WL 2806574, at *2 (N.D.N.Y. Sept.28, 2006) (Kahn, J., adopting Report-Recommendation by Homer, M.J.); Demos v. John Doe, 118 F.Supp.2d 172, 174 (D.Conn.2000); McFadden v. Parpan, 16 F.Supp.2d 246, 247 (E.D.N.Y.1998); see also Rolle v. Garcia, 04-CV-0312, Report-Recommendation (N.D.N.Y. Jan. 29, 2007) (Lowe, M.J.), adopted on other grounds, 04-CV-0312, 2007 WL 672679 (N.D.N.Y. Feb.28, 2007) (Kahn, J.).

The first thing we must do is determine the date when Plaintiff "brought" this action for purposes of 28 U.S.C. § 1915(g). The Complaint in this action was signed by Plaintiff on September 12, 2005, postmarked on January 12, 2006, and received (and docketed) by the Clerk's Office on January 13, 2006. (Dkt. No. 1.) Ordinarily, under the "prison mailbox rule, " the date of filing is deemed to be the date that the prisoner-plaintiff is presumed to have handed his complaint to a prison guard for mailing, which is the date that the complaint was signed. FN2 The problem here is that there appears to have been a four-month delay between the date of signing of the Complaint and the date of mailing (or post-marking) of the Complaint. As a result, the question arises: was Plaintiffs Complaint "filed" on the date of signing (i.e., September 12, 2005) or on the date of mailing (i.e., January 12, 2006)? Fortunately, the Court need not decide whether Plaintiff's action was "brought, " for purposes of 28 U.S.C. § 1915(g)-on September 12, 2005, or on January 12, 2006-because an analysis under either finding would yield the same conclusion.

FN2. See Shaw v. Superint., Attica Corr. Facility, 03-CV-0610, 2007 WL 951459, at *3 n. 3 (N.D.N.Y. March 28, 2007) (McCurn, J.) (habeas corpus proceeding) [citations omitted]; Garraway v. Broome County, N.Y., 03-CV-0681, 2006 WL 931729, at *3-4 (N.D.N.Y. Apr.7, 2006) (McAvoy, J.) (prisoner civil rights action) [citation omitted].

After carefully reviewing Plaintiff's litigation history on the Federal Judiciary's Public Access to Court Electronic Records ("PACER") Service, I have determined that, as of September 12, 2005 (the earlier of the two aforementioned dates), he had acquired at least three "strikes" for purposes of 8 U.S.C. § 1915(g)

Plaintiffs "firststrike" came inthe case of Chavis v. Charnes, 99-CV-5072 (S.D.N.Y.). In Charnes, Plaintiff's pro se prisoner rights complaint was dismissed by the Southern District of New York sua sponte, on July 14, 1999. See Chavis v. Charnes, 99-CV-5072, Docket Sheet (S.D.N.Y.) (attached as Exhibit 1 to this Report-Recommendation). The Docket Sheet does not expressly state whether the dismissal was for frivolousness, maliciousness or merely failure to state a claim. Id. However, clearly the dismissal was for one of those three reasons since the Order of Dismissal expressly cited 28 U.S.C. § 1915 and was issued sua sponte immediately after filing. Id. The only authority under 28 U.S.C. § 1915 to issue such an order sua sponte immediately after filing is if the dismissal is frivolousness, maliciousness or failure to state a claim. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(a), (b). Furthermore, the Chief District Judge issuing the Order (Thomas P. Griesa) certified that any appeal from his Order of Dismissal would not be taken in good faith for purposes of 28 U.S.C. § 1915(a)(3). See Chavis v. Charnes, 99-CV-5072, Docket Sheet (S.D.N.Y.) (attached as Exhibit 1 to this Report-Recommendation). Such a certification, which occurs when a district judge finds the lack of an arguable basis in law or fact in the losing party's claims or arguments, indicates a finding of frivolousness with regard to Plaintiff's claims.FN3 Thus, there was clearly at least one "strike" for purposes of 28 U.S.C. § 1915(g) before he "brought" this actionon September 12, 2005.

FN3. See Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962) ("We consider a [losing party's] good faith... demonstrated when he seeks appellate review of any issue not frivolous. In so doing, we note that if in forma pauperis litigation is attempted for reasons that may genuinely be characterized as the litigant's bad faith, ' express authority exists in 28 U.S.C.1915(d) for dismissal of the cause as frivolous."); accord, Pytel v. U.S., 378 F.Supp. 294, 296-97 (N.D.N.Y.1974) (MacMahon, J.) ("This Court will not authorize an appeal in forma pauperis under 28 U.S.C. § 1915(a) and hereby certifies that any appeal is not taken in good faith. In this context, good faith is judged by an objective standard, and where, as here, an appeal would be frivolous, it is not taken in good faith.") [citations omitted]; S.E.C v. Broadwell Securities, Inc., 64-CV-3995, 1981 WL 1655, at *1 (S.D.N.Y. July 8, 1981) ("An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith. 28 U.S.C. § 1915. Good faith, in this context, is an objective standard that measures whether the issues on appeal are frivolous.") [internal quotation marks and citations omitted].

*3 Plaintiff's "second strike" came during his appeal from the aforementioned order of dismissal. Despite Chief Judge Griesa's certification that any appeal from his Order of Dismissal would not be taken in good faith for purposes of 28 U.S.C. § 1915(a)(3), Plaintiff took an appeal anyway, on August 12, 1999. See Chavis v. Charnes, 99-CV-5072, Docket Sheet (S.D.N.Y.) (attached as Exhibit 1 to this Report-Recommendation). The appeal, which was to the Second Circuit, was assigned docket number 99-265. Id; see also Chavis v. Charnes, No. 99-265, Docket Sheet (2d Cir.) (attached as Exhibit 2 to this Report-Recommendation). On February 25, 2000, the Second Circuit issued an Order denying Plaintiff's request to proceed in forma pauperis during the appeal, and dismissed Plaintiff's appeal. ( Id. ) Although the copy of the Order of Dismissal is not available on-line, the Second Circuit Docket Sheet expressly quotes the Order. See Chavis v. Charnes, No. 99-265, Docket Sheet (2d Cir.) (attached as Exhibit 2 to this Report-Recommendation). According to the Docket Sheet, the Order stated:

Motions having been made by appellant pro se for in forma pauperis status and for damages, upon due consideration it is ordered that said motions be and hereby are denied, and the appeal is dismissed as frivolous. See 28 U.S.C. 1915(e); Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).

( Id. )FN4 I can find no record of any appeal pending (or having been actually filed) with the Supreme Court. Thus, there was clearly a "second strike" for purposes of 28 U.S.C. § 1915(g) before Plaintiff "brought" this action on September 12, 2005. I note that a second strike may result from the dismissal of a federal appeal, even though the appellant had already incurred a strike during the dismissal of the federal district court action underlying the appeal.FN5

FN4. I note that this express finding of "frivolousness" is also reflected in the district court docket sheet's identification of the Second Circuit's Order of Dismissal. See Chavis v. Chames, 99-CV-5072, Docket Sheet (S.D.N.Y.) (attached as Exhibit 1 to this Report-Recommendation).
FN5. See Cait v. Beto I Unit, 04-CV-40848, 126 Fed.App'x 645, 646 (5th Cir. Feb.23, 2005) ("The magistrate judge's dismissal of Cain's complaint as frivolous and for failure to state a claim and our dismissal of Cain's appeal both count as strikes for purposes of 28 U.S.C. § 1915(g)."); Smith v. Bruce, No. 04-3043, 103 Fed.App'x 324, 344 (10th Cir. June 29, 2004) ("Dismissal of Smith's appeal as frivolous counts as a strike against him, as does the district court's dismissal of his complaint.") [citations omitted]; Mains v. Washington, 131 F.3d 1248, 1250 (7th Cir.1997) ("A frivolous complaint (or as in this case a complaint that is dismissed under § 1915 A for failure to state a claim) followed by a frivolous appeal leads to two strikes' under 28 U.S.C. § 1915(g)."); cf. Bea v. Doe, 401 F.Supp.2d 538, 540 & n. 5 (E.D.Va.2005) (because district court proceeding and appellate proceeding arising out of district court proceedings were "distinct" for purposes of PLRA's "three strikes" rule, the plaintiffs voluntary withdrawal of his appeal did not effect the fact that the dismissal of the district court action constituted a "strike").

Plaintiffs "third strike" came in the case of Chavis v. Streubel, No. 04-2814 (2d Cir.). In Streubel, Plaintiff's pro se prisoner rights complaint was dismissed by the Western District of New York on March 29, 2004, for failure to state claim and failure to adduce evidence pursuant to Fed.R.Civ.P. 56. Chavis v. Struebel, 317 F.Supp.2d 232, 236-39 (W.D.N.Y. March 29, 2004). As a result, no strike resulted from that dismissal. However, during the dismissal, the United States Magistrate Judge (assignment to whom the parties had consented) certified that any appeal from his order of dismissal would not be taken in good faith, for purposes of 28 U.S.C. § 1915(a)(3). Struebel, 317 F.Supp.2d at 239. Plaintiff took an appeal anyway. On June 2, 2005, the Second Circuit dismissed the appeal because it "lack[ed] an arguable basis in law or fact" pursuant to 28 U.S.C. § 1915(e)(2) (B)(l), expressly citing that statute and Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Chavis v. Struebel , No. 04-2814, Mandate (2d Cir. filed March 11, 2005) (attached as Exhibit 3 to this Report-Recommendation). Neitzke v. Williams , and its progeny, explain that use of such language is an unequivocal findin frivolousness for purposes of 28 U.S.C. § 1915.FN6 I can find no record of any appeal pending (or having been filed) with the Supreme Court. Thus, there was clearly a "third strike" for purposes of 28 U.S.C. § 1915(g) before he "brought" this action on September 12, 2005.

FN6. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) ("[A]n appeal on a matter of law is frivolous where none of the legal points are arguable on their merits.... By logical extension, a complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or fact.") [internal quotation marks and citation omitted]; Tavarez v. Reno, 54 F.3d 109, 109 (2d Cir.1995) ("An appeal is frivolous where it lacks an arguable basis in law or fact.") (citing Neitzke v. Williams, 490 U.S. 319, 325 [1989]).

*4 Even if one of the above dismissals did not constitute a "strike" for some reason, Plaintiff incurred yet another strike before he filed the current action. Plaintiff's "fourth strike" came in the case of Chavis v. New York, UID XXXX-XXX-XXX (N.Y.Ct.CI.). In Chavis v. New York, Plaintiff, as a prisoner proceeding pro se, filed a claim against New York State for the "loss of travel expenses [incurred] by [his] family members" as a result of "false information given them over the phone by [his] vindictive SHU-Counselor" regarding the authorized time during which they could visit Plaintiff at Lakeview Prison. Chavis v. New York, UID XXXX-XXX-XXX, Decision (N.Y. Ct. CI. filed Sept. 19, 2001) (Patti, J.) (attached as Exhibit 4 to this Report-Recommendation). The defendant moved to dismiss on the ground that the claim was inappropriately brought in that (1) Plaintiff was not the one who incurred the property loss and (2) he was not authorized to represent them in court (as a practicing attorney). Id. The Court of Claims judge assigned to the case, Judge Philip J. Patti, agreed with defendant and dismissed Plaintiffs claim on September 19, 2001. Id. Notably missing from the decision is any mention of evidence. This is because the decision was based solely on the allegations of Plaintiff's complaint. As a result, the dismissal was much like one for failure to state a claim upon which relief may be granted under Fed.R.Civ.P. 12(b)(6).FN7 I can find no record of any appeal from this decision anywhere pending (or having been filed). Thus, there appears to have been a "fourth strike" for purposes of 28 U.S.C. § 1915(g) before he "brought" this actionon September 12, 2005.

FN7. I note that, even if the dismissal of Plaintiff's claim in Chavis v. New York was not simply caused by a failure to state a claim but was also caused partially by a lack of standing, case law exist holding that such a dismissal would still constitute a "strike" for purposes of 28 U.S.C. § 1915(g). See Jones v. Edgar, 3 F.Supp.2d 979, 981-82 (C.D.Ill.1998) (dismissal of prisoner's claim relating to alleged Fifteenth Amendment violation for failure to state claim, coupled with dismissal of prisoner's judicial-voting-districts claim for lack of standing, counted as a "strike" for purposes of PLRA), cited with approval in Eady v. Lappin, 05-CV-0824, 2007 WL 1531879, at *2, n. 4 (N.D.N.Y. May 22, 2007) (Mordue, C.J., adopting Report-Recommendation by Lowe, M.J.) [collecting cases]; cf. Comeaux v. Cockrell, 72 F.Appx. 54, 55 (5th Cir.2003) ("The districtcourtcould dismiss part of [the plaintiff's] complaint as malicious, which counted as a strike under 28 U.S.C. § 1915(g), even though the case was ultimately dismissed for failure to comply with court orders."); Cross v. Harris, 06-CV-0236, 2006 WL 3834270, at *3 & n. 1 (E.D.Ark. Dec.29, 2006) (counting as a strike a prior partial dismissal on ground of frivolousness, even though rest of action was dismissed for failure to exhaust administrative remedies); President v. Duplichan, 05-CV-1178, 2006 WL 2540362, at *5 (W.D.La. June 14, 2006) (considering fact that "Plaintiff has had at least three previous civil actions filed in this Court dismissed in whole or in part as frivolous, malicious, or for failing to state a claim" in determining whether he had acquired "three strikes" pursuant to Section 1915[g]) [emphasis added]; Townsend v. Walker, 06-CV-0361, 2006 U.S. Dist. LEXIS 37723, at *3-4, 2006 WL 1663713 (S.D. Ill. June 8, 2006) (rejecting plaintiff's argument that "[b]ecause [his] entire case was not dismissed for failure to state a claim, ... the... [partial dismissal] should not count as a strike."); Shaw v. Weaks, 06-CV-2024, 2006 WL 1049307, at *6 n. 13 (W.D.Tenn. Apr.20, 2006) (counting as a strike a prior partial dismissal on ground of firivolousness or failure to state claim, even though rest of action was dismissed for failure to exhaust administrative remedies); demons v. Young, 240 F.Supp.2d 639, 640-641 (E.D.Mich.2003) (ruling that "a complaint dismissed in part as frivolous and in part without prejudice because of the failure to exhaust administrative remedies is... a strike' forpurposes of 28 U.S.C. § 1915(g)"). Having said all of this, I note that, for the most part, I am not persuaded by Defendants' argument that various of Plaintiffs actions or appeals resulted in "strikes" for purposes of 28 U.S.C. § 1915(g). (Dkt. No. 31, Part 13, at 4-5.) Generally, either the particular dismissals cited by Defendants occurred after the "bringing" of Plaintiff's action (on September 12, 2005, or perhaps January 12, 2006), or those dismissals simply did not occur on the ground that the action was "frivolous, malicious, or fails to state a claim" under 28 U.S.C. § 1915(g). I note that I do not read 42 U.S.C. § 1915(g), or the cases applying it, as suggesting that a dismissal solely because of discovery abuses pursuant to Fed.R.Civ.P. 37, or a failure to serve pursuant to Fed.R.Civ.P. 41, constitutes a dismissal for frivolousness, maliciousness or failure to state a claim.FN8 Failures during discovery and failures to serve are failures based on something other than the four corners of a plaintiff's complaint-which is essentially the only thing looked at when determining frivolousness, maliciousness and failure to state a claim. Finally, I read 42 U.S.C. § 1915(g) as not encompassing a dismissal that is based partially upon the absence of genuine issues of material fact determined after a review of record evidence pursuant to Fed.R.Civ.P. 56. Apart from the fact that 28 U.S.C. § 1915(g), which is very specific, does not speak of such dismissals, such a review of record evidence generally only occurs when a litigant has survived any argument that his claim is frivolous, malicious or fails to state a claim.
FN8 See, e.g., Marjorie A. Shields, "Validity and Construction of Three Strikes' Rule Under 28 U.S.C.A. § 1915(g) Barring Prisoners from In Pauperis Filing of Civil Suit After Three Dismissals for Frivolity, " 168 A.L.R. Fed. 433, §§ III.5. III.6 (2001 & Cumulative Supplement) (discussing cases addressing what constitutes a "frivolous" or "malicious" action for purposes of 28 U.S.C.A. § 1915[g]).

*5 For all of these reasons, I find that Plaintiff had earned at least three "strikes" for purposes of 28 U.S.C. § 1915(g) before he "brought" this action on September 12, 2005. However, that does not end our inquiry, because the "Three Strikes Rule" contains an exception for prisoners who are "in imminent danger of serious physical injury" when they bring their action. 28 U.S.C. § 1915(g).

B. Non-Applicability of Imminent Danger Exception

As stated earlier, the "Three Strikes Rule, " set forth in the federal statute governing in forma pauperis proceedings, reads,

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g) [emphasis added].

Because 28 U.S.C. § 1915(g) creates an exception for prisoners who are under imminent danger of serious physical injury when they "bring a civil action, " the imminent-danger exception applies only when such danger exists at the time the action is brought. See Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir.2002). As the Second Circuit explained in Malik,

We agree with our sister circuits that § 1915(g) allows prisoners to escape the three strikes rule only if "the prisoner is under imminent danger of serious physical injury." (emphasis added). Because § 1915(g) uses the present tense in setting forth the imminent danger exception, it is clear from the face of the statute that the danger must exist at the time the complaint is filed. Further, "[b]y using the term imminent, ' Congress indicated that it wanted to include a safety valve for the three strikes' rule to prevent impending harms, not those harms that had already occurred." Abdul-Akbar [v. McKelvie], 239 F.3d [307] at 315 [3d Cir.2001]. Accordingly, the language of § 1915(g) makes clear that the "imminent danger" exception only applies to danger existing at the time the complaint is filed.

Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir.2002), accord, Polanco v. Hopkins, No. 07-1739, 2007 WL 4258724, at *2-3 (2d Cir. Dec.6, 2007) (declining to overturn the Second Circuit's timeof-filing interpretation set forth in Malik ).

As a result, as in the Court's analysis of the assessment-of-strikes issue, the first thing the Court must do when analyzing the imminent-danger issue is to determine the date when Plaintiff "brought" this action for purposes of 28 U.S.C. § 1915(g). As explained above in Part LA. of this Report-Recommendation, because of the "prison mailbox rule, " an issue exists regarding precisely when Plaintiff "brought" this action for purposes of 28 U.S.C. § 1915(g). He signed his original Complaint on September 12, 2005. However, he apparently did not mail that Complaint until on January 12, 2006. What further complicates matters is the fact that Plaintiff signed what he characterized as an "Amended" Complaint in this action on July 24, 2006. (Dkt. No. 6.) Ordinarily, this fact would not present a real problem, since an amended complaint contains allegations arising out of the same events as the events giving rise to the allegations contained in the original complaint. However, here, the "Amended" Complaint was, in actuality, an Amended and Supplemental Complaint, asserting, for the first time, allegations arising out of events occurring after the date he originally "brought" the action, specifically events occurring between May and July of 2006, at Auburn C.F. ( Compare Dkt. No. 1 with Dkt. No. 6.) As a result, a sort of paradox arises: If a court considers the new allegations presented in a plaintiff's supplemental complaint when resolving the imminent-danger issue (presented by 28 U.S.C. § 1915 [g]), the court will be determining whether the plaintiff was in imminent danger after, not before, he brought the action-unless the court re-characterizes the date on which the action was "brought" to coincide with the filing of the supplemental complaint.

*6 Fortunately, again, the Court need not resolve this issue because the Court would reach the same conclusion about the applicability of the imminentdanger exception regardless of whether the Court assumed Plaintiff "brought" this action on July 24, 2006, on January 12, 2006, or on September 12, 2005. This is because Plaintiff has not, in either his original Complaint or his Amended Complaint, alleged facts plausibly suggesting that he was under imminent danger of serious physical injury on any of the referenced dates.FN9

FN9 I note that, when determining whether a prisoner has qualified for the "imminent danger" exception, courts look at the nonconclusory allegations in the plaintiff's complaint. Welch v. Fisher, 07-CV-0929, 2007 WL 3231992, at *1-2 (N.D.N.Y. Oct.30, 2007) (McAvoy, J.) (concluding that plaintiff had failed to allege imminent danger of serious physical injury) [citations omitted]; see also Abdrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir.2007) ("[A]ll [circuits] maintain a singular focus on the facts alleged in the complaint in deciding whether a prisoner faced the requisite harm.") [collecting cases]; Ibrahim v. Dist., ofColumbia, 463 F.3d 3, 6 (D.C.Cir.2006) ("In determining whether he qualifies [forthe imminentdanger' exception], we look to the complaint"); Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir.2004) ("[T]he issue [under § 1915(g) ] is whether his complaint, as a whole, alleges imminent danger of serious physical injury."); Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.2003) ("Before denying leave to proceed IFP, courts must review a frequent filer's well-pled allegations to ensure that the prisoner is not in imminent danger.") [citation omitted]; Rivera v. Allin, 144 F.3d 719, 726 (11th Cir.1998) ("Prior to denying leave to proceed IFP, courts must review a frequent filer prisoner's wellpled allegations to ensure that the prisoner is not under imminent danger of serious physical injury.") [internal quotation marks and citation omitted], abrogated on other grounds, Jones v. Block, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).

For example, liberally construed, Plaintiff's Amended Complaint (signed on July 24, 2006) alleges that, between July of 2005, and July of 2006, at Auburn C.F., and Great Meadow C.F., the fourteen Defendants in this action violated his constitutional rights in the following ways:

(1) Defendant Curlee (a) filed false disciplinary charges against Plaintiff on July 7, 2005, in retaliation for his providing her with written notice that he intended to take legal action against her, at Auburn C.F., and (b) intentionally ignored Plaintiff's "mandatory program" request on or about July 11, 2005, at Auburn C.F.;

(2) Defendant Young denied Plaintiff a legal assistant prior to his disciplinary hearing on the referenced July 7, 2005, disciplinary charges, at Great Meadow C.F.;

(3) Defendant Jackowski (a) also denied Plaintiff a legal assistant prior to his disciplinary hearing on the referenced July 7, 2005, disciplinary charges, at Great Meadow C.F., (b) wrongfully convicted Plaintiff of the referenced charges, and excessively sentenced him to nine months' confinement in the Great Meadow C.F. SHU, and (c) Defendant Jackowski also excessively punished Plaintiff to six months' confinement in the Great Meadow C.F. SHU following another wrongful conviction of false and retaliatory charges filed by Defendant Curlee in July of 2005;

(4) Defendant Selsky failed to completely reverse these disciplinary convictions, in September or October of 2005;

(5) Defendant Green intentionally ordered wrongful disciplinary hearings against Plaintiff on false disciplinary charges in July and August of 2005, at Great Meadow C.F.;

(6) Defendant Campbell (a) filed false disciplinary charges against Plaintiff in July of 2005, in retaliation for his providing her with written notice that he intended to take legal action against her, at Great Meadow C.F., and (b) intentionally ignored Plaintiff's "mandatory program" request five or six months before his Parole Board interview in 2005, at Great Meadow C.F., resulting in his denial of release to parole;

(7) Defendant Atkinson wrongfully and intentionally denied Plaintiff's "mandatory program" requests between February and August of 2005, at Great Meadow C.F., ...


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