United States District Court, W.D. New York
DECISION AND ORDER
LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE
case, brought under 42 U.S.C. § 1983, was referred to
United States Magistrate Judge Leslie G. Foschio pursuant to
28 U.S.C. § 636(b)(1). On September 28, 2016, Judge
Foschio addressed several pending motions in a combined
Report and Recommendation/Decision and Order
(“R&R/D&O”). Docket Item 98. The
plaintiff then objected to Judge Foschio's decision to
revoke his in forma pauperis status. See
Docket Item 99 (plaintiff's objections). And the
defendants objected to Judge Foschio's recommendation
that their motion for summary judgment, which argued that the
plaintiff had failed to exhaust his administrative remedies,
be denied. See Docket Item 101 (defendants'
November 9, 2016, this Court heard oral argument on the
objections by both sides and permitted the parties to make
additional submissions. See Docket Item 104. Both
sides then submitted additional briefing. Docket Items 105
& 106. For the reasons set forth below and in Judge
Foschio's R&R/D&O, this Court adopts Judge
Foschio's recommendations and affirms his orders, as
respect to dispositive matters, such as the defendants'
motion for summary judgment, this Court “must determine
de novo any part of the magistrate judge's disposition
that has been properly objected to” and “may
accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the
magistrate judge with instructions.” Fed.R.Civ.P.
72(b)(3); see 28 U.S.C. § 636(b)(1). With
respect to non-dipositive matters, this Court “may
reconsider” a magistrate judge's decision only
“where it has been shown that the magistrate
judge's order is clearly erroneous or contrary to
law.” 28 U.S.C. § 636(b)(1)(A); see Fed.
R. Civ. P. 72(a).
Motion to Revoke In Forma Pauperis Status
defendants filed a motion to revoke the plaintiff's
in forma pauperis status “as improvidently
granted” under 28 U.S.C. § 1915(g). Docket Item 57-1
at 1. According to the defendants, the plaintiff had
“accumulated over three strikes prior to the filing of
the Complaint in this case.” Id. The
defendants then identified six specific actions that, they
argued, should be treated as “strikes” for the
purposes of 28 U.S.C. § 1915(g). See Docket
Item 57-1 at 3-4.
Foschio agreed with the defendants on three of the alleged
strikes. See Docket Item 98 at 18-24. He therefore
found that the plaintiff had “accumulated three strikes
prior to commencing this action, requiring revocation of his
IFP status.” Id. at 24. Judge Foschio further
ordered and recommended that this action
be stayed pending Plaintiff's payment of the $350 filing
fee no later than forty-five (45) days of any order
adopting this report and recommendation. Should Plaintiff
fail to pay the filing fee within the recommended forty-five
day period, the Clerk of the Court should be directed to
dismiss the Second Amended Complaint and to close the file.
Id. (emphasis in original, footnote omitted).
Court has reviewed the plaintiff's objections, which
largely focus on whether the three strikes that Judge Foschio
relied on were, in fact, strikes. See Docket Item
99. Under either a de novo or deferential standard, this
Court agrees with Judge Foschio's analysis and declines
to reject or reconsider Judge Foschio's recommendation
and decision concerning the alleged strikes. This Court
therefore adopts and affirms the R&R/D&O to the
extent that it finds that the plaintiff had three strikes and
revokes his in forma pauperis status.
Court does, however, modify the R&R/D&O in one
respect. In his objections, the plaintiff claims to have been
released from prison. Docket Item 99 at 2. If that still is
the case-that is, if the plaintiff no longer is a
prisoner-and if the plaintiff “can establish his
eligibility for in forma pauperis status, ”
then “he, like any non-incarcerated litigant” who
has established in forma pauperis status,
“should be excused from paying the filing fee.”
Harris v. City of N.Y., 607 F.3d 18, 24 (2d Cir.
2010); seealso McGann v.
Comm'r, Soc. Sec. Admin., 96 F.3d 28, 30 (2d Cir.
1996) (upon prisoner's release, “his obligation to
pay fees is to be determined, like any non-prisoner, solely
by whether he qualifies for i.f.p. status”). Therefore,
this Court orders that unless the plaintiff pays the $350.00
filing feeor, assuming ...