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Anderson v. Nolan

United States District Court, W.D. New York

June 26, 2018

DERRICK ANDERSON, Plaintiff,
v.
OFFICER L. NOLAN, et al., Defendants.

          DECISION AND ORDER

          HON. FRANK P. GERACI, JR. CHIEF JUDGE UNITED STATES DISTRICT COURT.

         Pro se Plaintiff Derrick Anderson brings this action pursuant to 42 U.S.C. § 1983 against Defendants Officer L. Nolan, Officer A. Vargas, Officer Koch, Officer Galloway, Officer Jarecki, and hearing officer Peter Marchie. At this juncture, Plaintiff's only remaining causes of action are his excessive force claims against Defendants Nolan, Vargas, Koch, and Galloway and his due process claims against Defendants Jarecki and Marche. See ECF No. 22 (screening Plaintiff's Amended Complaint). At the outset of this litigation, Plaintiff also sought permission to proceed in forma pauperis under 28 U.S.C. § 1915(a) (ECF No. 2), a request this Court granted in its February 6, 2017 Decision and Order. See ECF No. 13, at 2. Defendants now seek to revoke Plaintiff's in forma pauperis status under 28 U.S.C. § 1915(g). See ECF No. 25. In addition, Plaintiff has filed a Motion for Miscellaneous Relief (ECF No. 34), which appears to be a motion for sanctions, and a formal Motion for Sanctions (ECF No. 38). Defendants have, in turn, filed their own Motion for Sanctions (ECF No. 37).

         I. In Forma Pauperis Status

         Section 1915(g) 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). Defendants argue that, as of March 10, 2016-the date this case was filed- Plaintiff already had three lawsuits and one appeal that had been dismissed by courts in this district and the Second Circuit, respectively, as “frivolous, malicious[, ] or for failing to state a claim.” ECF No. 25-1, at 1. They argue that, because Plaintiff is currently an inmate, and because he filed his prior cases and appeal when he was also an inmate, he falls within the purview of § 1915(g), and his in forma pauperis status should be revoked. See Id. at 1-3.

         Three of the four[1] dismissals cited by Defendants constitute “strikes” under § 1915(g). In Anderson v. Lalley, No. 12-cv-6355-FPG (W.D.N.Y. Oct. 29, 2015), this Court dismissed Plaintiff's suit with prejudice for failure to state a claim upon which relief could be granted. See Lalley, No. 12-cv-6355-FPG, ECF No. 40. The Second Circuit then dismissed Plaintiff's subsequent appeal for “lack[ing] an arguable basis in law or in fact.” See Lalley, No. 15-3582 (2d Cir. Jan. 28, 2016), ECF No. 26 (citing Nietzke v. Williams, 490 U.S. 319 (1989), for the definition of “frivolous”). In Anderson v. Annuci, No. 14-cv-6370-FPG (W.D.N.Y. Oct. 27, 2014), Plaintiff's suit was, once again, dismissed with prejudice for failing to state a claim upon which relief could be granted. See Annuci, No. 14-cv-6370-FPG, ECF No. 3. In sum, Plaintiff has had at least three actions or appeals dismissed for being frivolous or failing to state a claim. See Chavis v. Chappius, 618 F.3d 162, 169 (2d Cir. 2010) (counting the dismissal of a complaint and dismissal of the subsequent appeal, both on § 1915(g) grounds, as “separate strikes under § 1915(g)”). Moreover, in each instance, Plaintiff was an inmate at the time of filing. See Annuci, No. 14-cv- 6370-FPG, ECF No. 3, at 1; Lalley, No. 12-cv-6355-FPG, ECF No. 40, at 1; Lalley, No. 12-cv-6355-FPG, ECF No. 41, at 5-6; see also Lalley, No. 15-3582, ECF No. 9, at 1.

         In response, Plaintiff argues only that he had previously been granted in forma pauperis status in yet another matter, and-therefore-“any matters constituting strikes must start after” that case. ECF No. 26, at 1. Plaintiff cites no authority for that conclusion. Instead, he reasons that, because that case was allegedly not dismissed on a ground enumerated in § 1915(g), Defendants' argument is somehow rendered meritless. See Id. at 1-2. From the outset, the Court notes that Plaintiff's response fails to provide a case No. for the action he references. To the extent he is referring to Anderson v. Serena, No. 12-cv-6039-JWF (W.D.N.Y. Oct. 13, 2016), his filing of that case appears to predate his accumulation of at least three strikes. See Serena, No. 12-cv-6039-JWF, ECF No. 1. Since that time, Plaintiff has indisputably accumulated at least three strikes under § 1915(g). Accordingly, Plaintiff fails to rebut Defendants' argument for revocation of his in forma pauperis status.

         After Defendants filed their reply to Plaintiff's response, Plaintiff continued to file additional memoranda without this Court's permission-in total, five unauthorized surreplies, see ECF Nos. 29-33-and, upon further motion, seeks “an order granting the relief requested in Plaintiff's Complaint, and any further relief as this Court may deem just and proper, ” for “Plaintiff's numerous memorandums [sic] that were not responded to by . . . Defendants.” ECF No. 34, at 1. Indeed, in his most recent Motion for Sanctions (ECF No. 38), Plaintiff continues to argue against Defendants' earlier motion for revocation of his in forma pauperis status. See ECF No. 38.

         While the Court fully recognizes the leniency to be afforded pro se litigants, see, e.g., Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010), Plaintiff had no basis for continuing to inundate this Court with additional memoranda-much less, to affirmatively seek sanctions against Defendants for failing to respond to his unauthorized filings. Moreover, his first unauthorized memorandum still asserts the same argument from his earlier response. See ECF No. 29. Plaintiff does not introduce a new argument until his second unauthorized memorandum, in which he starts to concede that, while he might have three strikes, he should fall within the imminent-danger exception provided in § 1915(g). See ECF No. 30. In his fourth unauthorized memorandum, Plaintiff escalates and begins to claim that this Court had already determined that he qualified for the imminent-danger exception. See ECF No. 32.

         This Court did no such thing. It cited “the statutory requirements of . . . § 1915(a)” in granting in forma pauperis status, not § 1915(g). ECF No. 13, at 2. Indeed, the Court could not have reached such a determination, because Plaintiff materially misrepresented his litigation history on the form complaint he included within his original 173-page filing on March 10, 2016. See ECF No. 1. When asked whether he had “begun any other lawsuits in federal court which relate[d] to [his] imprisonment, ” Plaintiff checked the box indicating that he had not. See ECF No. 1, at 5. Plaintiff then signed the form complaint, “declar[ing] under penalty of perjury that the foregoing [wa]s true and correct.” See Id. at 9; see also, e.g., Flemming v. Santamore, No. 9:15-cv-00457(MAD/ATB), 2016 WL 3221844, at *3 (N.D.N.Y. June 10, 2016) (“When a [p]laintiff dishonestly answers a question on a form complaint and swears to the truthfulness of that answer, no amount of special solicitude afforded to pro se litigants can excuse such a material misrepresentation to the court.”).

         Furthermore, aside from that misrepresentation, Plaintiff would not qualify for the imminent-danger exception. The Second Circuit has instructed that “[a]n imminent danger is not one ‘that has dissipated by the time a complaint is filed; rather it must be one ‘existing at the time the complaint is filed.'” Chavis, 618 F.3d at 169 (internal citation omitted) (first quoting Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009); and then quoting Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002)); see also Akassy v. Hardy, 887 F.3d 91, 96 (2d Cir. 2018) (explaining that “it is not sufficient to allege that ‘harms . . . had already occurred'” (quoting Malik, 293 F.3d at 562-63) (alterations in original)). While § 1915(g) presents “only a threshold procedural question”-meaning it does not require “an overly detailed inquiry into . . . the allegations”-there must still be a serious physical injury feared. See Chavis, 618 F.3d at 169 (quoting Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007)). There must also “be a nexus between the imminent danger a three-strikes prisoner alleges . . . and the legal claims asserted in his complaint.” Akassy, 887 F.3d at 97 (quoting Pettus, 554 F.3d at 297). To assess whether the proper nexus exists, courts look to “(1) whether the imminent danger of serious physical injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct asserted in the complaint[;] and (2) whether a favorable judicial outcome would redress that injury.” Pettus, 554 F.3d at 298-99.

         Plaintiff's Complaint did not explicitly reference any serious physical injury imminent at the time of filing-instead, it recounted only past alleged harms. See ECF No. 1. The only potential basis for inferring serious and imminent physical harm would seem to be the claimed persistence of injuries from the alleged assault on September 5, 2015 and the purported failure to properly treat those injuries.[2] Even in the light most favorable to Plaintiff, the continuation of his claimed physical infirmities does not rise to the level of “serious” physical harm contemplated by § 1915(g). Compare ECF No. 1, at 10-11, 27-28 (complaining of headaches, blurred vision, and continued pain and discomfort), with, e.g., Gasaway v. Purdue, No. 9:11-CV-1272 (LEK/DEP), 2012 WL 1952928, at *6 (N.D.N.Y. Apr. 9, 2012) (listing sufficiently serious allegations), adopted, 2012 WL 1952644 (W.D.N.Y. May 30, 2012). On a separate-and even more definitive-front, even if there had been sufficient harm posed by the alleged failure to adequately treat Plaintiff's claimed injuries, it would have dissipated when Plaintiff subsequently transferred facilities, which occurred months before he initiated this action. See ECF No. 1, at 30 (“[I] suffer[ed] in severe pain the whole time I was housed in Attica Correctional Facilities [sic] S.H.U. from 9-5-15 thru [sic] 10-9-15. I was transferred to Southport Correctional on 10-9-15.”). Accordingly, Plaintiff's Complaint does not allege any serious and imminent physical harm at the time of its filing.[3]

         Plaintiff's Amended Complaint fails to provide additional details regarding any purportedly imminent physical danger. See ECF No. 14; ECF No. 22. To the contrary, it-again- specifies that the alleged failure to treat Plaintiff's claimed injuries was limited to the period of time from “September 5th, 2015 until October 9th, 2015.” See ECF No. 14, at 2. While the Court is “obligated to draw the most favorable inferences that [Plaintiff's] complaint supports, ” the Court “cannot invent factual allegations that he has not pled.” Chavis, 618 F.3d at 170. The absence of any allegations in the Complaint or Amended Complaint as to an imminent danger of serious physical harm means ...


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