United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A.WOLFORD United States District Judge
Anthony Romano ("Plaintiff) filed this action on August
31, 2016, alleging violations of his constitutional rights
pursuant to 42 U.S.C. § 1983. (Dkt. 1). Plaintiff also
submitted a motion for leave to proceed in forma
pauperis, (Dkt. 2), which the Court granted on September
13, 2016. (Dkt. 4).
10, 2017, Defendant Judith Briem ("Defendant")
filed a motion to revoke Plaintiffs in forma
pauperis status and dismiss the complaint unless
Plaintiff pays the filing fee. (Dkt. 14). Defendant argues
that Plaintiff has had "at least three prior actions
dismissed on the ground that they were frivolous, malicious,
or failed to state a claim" prior to filing the instant
action. (Dkt. 16). The Court ordered Plaintiff to file any
response in opposition by June 1, 2017. (Dkt. 17). Plaintiff
did not respond.
reasons stated below, Defendant's motion is granted, and
Plaintiffs in forma pauperis status is revoked.
is incarcerated at the Five Points Correctional Facility,
and, as a prisoner, is required to abide by the provisions of
28 U.S.C. § 1915. See 28 U.S.C. §
1915.Pursuant to § 1915(g), 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.
§ 1915(g). Where a plaintiff is granted in forma
pauperis status but has violated § 1915(g)'s
so-called "three strikes rule, " a court may revoke
the plaintiffs in forma pauperis status.
Juddv. Sec'y of Conn., No. 3:llcv879 (MRK), 2011
WL 7628681, at *2(D. Conn. Dec. 9, 2011) (revoking the
plaintiffs in forma pauperis for violating the three
strikes rule). "The district court may rely on the
relevant docket sheets if they indicate with sufficient
clarity that the prior suits were dismissed on the grounds
that they were frivolous, malicious, or failed to state a
claim upon which relief may be granted." Harris
v. City of N.Y., 607 F.3d 18, 23-24 (2d Cir. 2010);
see, e.g., Mason v. Nitti-Richmond, No.09 Civ.
7307(JGK), 2010 WL 2595108, at *1 (S.D.N.Y. June 25, 2010)
("In the context of motions to revoke IFP status,
district courts routinely take judicial notice of docket
sheets in order to resolve the question of how many
'strikes' the plaintiff may have for purposes of
§ 1915(g)."). "[T]he three strikes rule is not
an affirmative defense that must be raised in the
pleadings." Harris, 607 F.3d at 23.
asserts that Plaintiff had accrued three strikes prior to
filing this action on August 31, 2016. (Dkt. 16 at 3).
Plaintiff received a strike in a Southern District
of New York case in which his complaint was dismissed because
it failed to state a claim upon which relief could be granted
and sought "monetary relief from a defendant who [was]
immune from such relief." Romano v. N.Y.C. Police
Dep't, l:04-cv-02733-MBM, Dkt. 3 (S.D.N.Y. Apr. 9,
2004). Plaintiff received another strike from the Northern
District of New York when that court dismissed a second
amended complaint with prejudice because it was frivolous.
See Romano v. Fischer, et al, 9.:14-CV-1176
(DNH/TWD), Dkt. 21 (N.D.N.Y. Nov. 3, 2015).
Plaintiff received a third strike when U.S. District
Judge Richard J. Arcara dismissed a complaint for failure to
state a claim upon which relief may be granted. Romano v.
Lisson et al, 16-CV-0081-A, Dkt. 7 (W.D.N.Y. June 16,
even under a liberal reading, the complaint does not suggest
in any way that Plaintiff "is under imminent danger of
serious physical harm" within the meaning of §
1915(g). (See Dkt. 1).
Plaintiff has received three strikes under § 1915(g), he
does not qualify for in forma pauperis status, and
his previously granted in forma pauperis status is
hereby revoked. Plaintiff has until August 10, 2017,
to pay the filing fee.
forgoing reasons, Defendant's motion to revoke Plaintiffs
in forma pauperis status (Dkt. 14) is granted.
has until August 10, 2017, to pay the filing fee. If
the filing fee is not paid by that date, the Clerk of Court
is directed to dismiss the complaint without prejudice and