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Harvey v. Jalonak

United States District Court, N.D. New York

October 2, 2014

GREGORY HARVEY, Plaintiff,
v.
DAVID A. JALONAK, Defendant.

GREGORY HARVEY, Plaintiff, pro se.

REPORT-RECOMMENDATION

ANDREW T. BAXTER, Magistrate Judge.

I. Introduction

Plaintiff filed this action on August 25, 2014, together with an application to proceed in forma pauperis ("IFP"). (Dkt. Nos. 1, 2-3). On the same day, Chief Judge Sharpe ordered administrative closure of the action because plaintiff failed to submit a properly completed IFP application. (Dkt. No. 4). In that order, Judge Sharpe afforded plaintiff thirty (30) days to either pay the filing fee or submit a properly completed IFP application.

On September 17, 2014, plaintiff filed a letter with the court claiming that the officials at his facility refused to certify his accounts for purposes of his IFP application. (Dkt. No. 6). He further requested that the court use his authorization form to "get" his prison account statements. ( Id. ) On September 18, 2014, Judge Sharpe ordered reopening of this action and has sent the complaint, together with the plaintiff's submission to me for my review.

II. IFP Application

A. Legal Standards

Where a plaintiff seeks leave to proceed IFP, the court must determine whether the plaintiff may proceed with the action without prepaying the filing fee in full. The court must then consider whether the causes of action stated in the complaint are, inter alia, frivolous or malicious, or if they fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915 (e)(2)(B).

In this case, even if plaintiff had submitted the appropriate form to show that his financial status would qualify him to "commence" this action without prepaying the filing fee in full, the court would recommend denying plaintiff's application. Title 28 of the United States Code, section 1915(g), as amended, provides:

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). The court has a responsibility to determine that a prisoner has not brought actions, on three or more occasions while incarcerated, which have been dismissed as frivolous, malicious or for failure to state a claim before permitting plaintiff to proceed with an action in forma pauperis. Id.

B. Application

1. Three-Strikes

Plaintiff has been a frequent litigator in the Northern District of New York. On March 3, 2011, the Honorable Lawrence E. Kahn, Senior United States District Judge issued an order in Harvey v. Law, No. 9:10-CV-1468 (LEK/DEP), finding that plaintiff's IFP application should be denied because he had "three strikes" for purposes of section 1915(g). (Dkt. No. 4 in 10-CV-1468). Senior Judge Kahn stated that plaintiff "brought at least three actions in the Northern District which were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. ( Id. at 2) (citing Harvey v. Grow, 9:09-CV-518 (N.D.N.Y.) (Order of Suddaby, J. filed 6/2/09); Harvey v. Sawyer, 9:09-CV-598 (N.D.N.Y.) (Dkt. No. 26, Order of Scullin, S.J. filed 8/20/10); Harvey v. Luther, 9:09-CV-599 (N.D.N.Y.) (Dkt. No. 5, Order of Hurd, J. filed 6/8/09); Harvey v. City of Utica, 9:09-CV-644 (N.D.N.Y.) ...


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