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Toliver v. Colvin

United States District Court, W.D. New York

February 8, 2017

JOHN C. COLVIN et al., Defendants.




         This 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' objections).

         On 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 modified.


         With 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).


         I. Motion to Revoke In Forma Pauperis Status

         The defendants filed a motion to revoke the plaintiff's in forma pauperis status “as improvidently granted” under 28 U.S.C. § 1915(g).[1] 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.

         Judge 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).

         This 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.

         This 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)[2]; 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 fee[3]or, assuming ...

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