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Mercer v. Harp

United States District Court, N.D. New York

January 23, 2015

ARTHUR L. MERCER, Plaintiff,
v.
KEVIN HARP, District Attorney; and DONALD WILLIAMS, County Court Judge, Defendants

ARTHUR L. MERCER, Plaintiff, Pro se, Kingston, New York.

REPORT-RECOMMENDATION AND ORDER

Randolph F. Treece, United States Magistrate Judge.

The Clerk has sent to the Court for review a civil rights Complaint brought, pursuant to 42 U.S.C. § 1983, by pro se Plaintiff Arthur Mercer, who is currently incarcerated in the Ulster County Jail. Dkt. No. 1, Compl. Plaintiff has not paid the filing fee and seeks leave to proceed with this action in forma pauperis (IFP). Dkt. Nos. 5 & 6, IFP App.[1] For the reasons set forth below, Plaintiff's request to proceed IFP is denied pursuant to 28 U.S.C. § 1915(g). And, for the reasons set forth below, we recommend dismissal of Plaintiff's Complaint and that his cases be forwarded to the Chief Judge for the issuance of a filing injunction order.

I. IFP APPLICATION

Where a plaintiff seeks leave to proceed IFP, a court must determine whether the plaintiff has demonstrated sufficient economic need to proceed without prepaying, in full, the $350.00 filing fee.[2] Upon review, the Court finds that Plaintiff has demonstrated economic need and has filed the Inmate Authorization Form required in this District. See Dkt. Nos. 6 & 7.

Our inquiry, however, does not cease; the Court must also determine whether the " three strikes" provision of 28 U.S.C. § 1915(g) bars Plaintiff from proceeding IFP. Section 1915(g) provides that

[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding [ in forma pauperis ] 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 recognizing the legitimate government interests fostered by the PLRA amendments, the Second Circuit stated that,

[p]rior to the enactment of the in forma pauperis amendments, inmates suffered no economic disincentive to filing lawsuits. Indeed, the very nature of incarceration--prisoners have substantial free time on their hands, their basic living expenses are paid by the state and they are provided free of charge the essential resources needed to file actions and appeals, such as paper, pens, envelopes and legal materials--has fostered a " 'nothing to lose and everything to gain'" environment which allows inmates indiscriminately to file suit at taxpayers' expense.

Nicholas v. Tucker 114 F.3d 17, 20 (2d Cir.1997) (citing Anderson v. Coughlin, 700 F.2d 37, 42 (2d Cir. 1983)).

Although service of process has not yet taken place, it is proper for this Court to review Plaintiff's litigation history and sua sponte invoke, if applicable, section 1915(g). Harris v. City of New York, 607 F.3d 18, 23 (2d Cir. 2010) (noting that a court may raise the three strikes rule sua sponte in order to foster the " compelling purpose of the [PLRA] . . . to give district courts greater power to protect their dockets from meritless lawsuits").

Plaintiff has filed several actions in this District, all of which have been dismissed upon the Court's initial screening. Thus, as set forth below, it is clear that, prior to bringing the within action, Plaintiff accumulated " three strikes" for purposes of section 1915(g).

A. Plaintiff's Case Review

1. Mercer v. Petro, Civ. No. 1: 11-CV-157 (GTS/DRH)

Mercer initiated this civil action in February 2011, while incarcerated in the Ulster County Jail, claiming that the defendant provided him ineffective assistance of counsel while acting as his defense counsel in state court. See Mercer v. Petro, Civ. No. 1:11-CV-157 (GTS/DRH), Dkt. No. 1. Because Mercer sought permission to proceed IFP, the Honorable David R. Homer, then-United States Magistrate Judge, reviewed the civil complaint as authorized by 28 U.S.C. § § 1915(e) and 1915A. Id. at Dkt. No. 5. Then-Magistrate Judge Homer found that Mercer could not bring this action pursuant to 42 U.S.C. § 1983 because it is well-settled that defense counsel, even those appointed by a court, do not act under color of state law, and to the extent Mercer intended to bring this action as a petition seeking a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, such avenue was premature as Mercer had not yet been convicted. Id. Accordingly, it was recommended that the Complaint be dismissed.

On June 28, 2011, the Honorable Glenn T. Suddaby, United States District Judge, reviewed the recommendations and concurred that the action failed to state a claim upon which relief could be granted and no amendment of the pleading could cure the identified deficiencies. Id. at Dkt. No. 9. This ...


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