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Abreu v. Lira

United States District Court, N.D. New York

September 30, 2014

CARLOS ABREU, Plaintiff,
v.
MICHAEL J. LIRA, et al., Defendants.

Carlos Abreu, Alden, New York, Plaintiff pro se.

Hon. Eric T. Schneiderman, New York State Attorney General Joshua E. McMahon, Esq., Assistant Attorney General, Albany, New York, Attorney for Defendants.

MEMORANDUM-DECISION AND ORDER

NORMAN A. MORDUE, Senior District Judge.

By letter motion (Dkt. No. 59), defendants request that this Court take the following actions: reverse its preliminary finding that plaintiff, an inmate in the custody of New York State Department of Corrections and Community Supervision ("DOCCS"), was entitled to the imminent harm exception to the "three strikes" rule of 28 U.S.C. § 1915(g); revoke plaintiff's in forma pauperis status; and direct plaintiff to file the full $350 filing fee associated with this action before proceeding. As set forth briefly below, the motion is granted.

Section 1915, concerning proceedings in forma pauperis, provides in subdivision (g) as follows:

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). In its initial order (Dkt. No. 5) granting plaintiff's application for in forma pauperis status, the Court noted that its finding that plaintiff may be entitled to proceed in forma pauperis "is a preliminary finding, and plaintiff's in forma pauperis status will be revoked if, as the case progresses, it is determined that he did not face imminent danger of serious physical injury when he commenced this action or is otherwise not entitled to proceed in forma pauperis. "

On this motion, defendants argue that, in fact, plaintiff did not face imminent danger of serious physical injury when he commenced this action, and that therefore his in forma pauperis status must be revoked. Defendants' motion is accompanied by a declaration from Amber A. Lashway, a Nurse Pratitioner employed by DOCCS. At the time plaintiff filed his complaint claiming that he was in "imminent danger of physical harm" Nurse Lashway was employed at New York State's Upstate Correctional Facility and was responsible for overseeing plaintiff's medical care. After two extensions of time, plaintiff filed an affidavit (Dkt. No. 68) and a letter (Dkt. No. 66) in opposition to the motion. Attached to these two submissions are exhibits totalling almost 300 pages (Dkt. Nos. 66, 68).

Upon referral pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c) United States Magistrate Judge David E. Peebles issued an excellent Report and Recommendation (Dkt. No. 73) recommending that plaintiff's in forma pauperis status be revoked and he be ordered to pay the full $350 filing fee and that, if plaintiff does not timely comply, the complaint be dismissed by the Clerk without further order of the Court. Plaintiff objects (Dkt. Nos. 79, 82). Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court reviews de novo those parts of a report and recommendation to which a party specifically objects.

In his objection, plaintiff argues that he does not have three strikes. The Court has reviewed the orders in the cases relied on by this Court and Magistrate Judge Peebles in determining that plaintiff had three strikes, and reaffirms that plaintiff does have three strikes.

In reviewing the issues surrounding plaintiff's claim that at the time he filed the complaint, he was facing imminent danger of serious physical injury, the Court agrees with Magistrate Judge Peebles' legal analysis and agrees that it is appropriate for the Court to review evidence outside the allegations of the complaint upon defendants' challenge to plaintiff's IFP status. Plaintiff has had ample opportunity to respond to defendants' challenge. Taking the entire record into account, including plaintiff's submissions in response to the Report and Recommendation, the Court finds that plaintiff's voluminous medical records, viewed in conjunction with Nurse Lashway's declaration and plaintiff's submissions, establish that plaintiff was not suffering any medical condition that would support a finding of imminent danger of physical injury at the time he filed the complaint herein. Nor was he in imminent danger in any other respect. There is no material question of fact warranting a hearing. Upon de novo review, the Court adopts Magistrate Judge Peebles' Report and Recommendation in its entirety.

It is therefore

ORDERED that the Report and Recommendation (Dkt. No. 73) is ...


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