United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR., JUDGE.
se Plaintiff Rafael Ceara commenced this action under 42
U.S.C. § 1983 on May 4, 2015 while he was incarcerated at
Sing Sing Correctional Facility. ECF No. 1. Plaintiff sues
Defendants C.O. Dowley, C.O. Bonapart, C.O. John Smith, Sgt.
Backer, Nurse DeMichele, and Ms. King, alleging they used
excessive force, failed to intervene, and denied him adequate
medical care on April 23, 2012 at Elmira Correctional
Facility. Id. at 8-11. Plaintiff sought and was
granted permission to proceed in forma pauperis
(“IFP”) under 28 U.S.C. § 1915(a)-(b) on
October 2, 2017. ECF No. 7.
now move to revoke Plaintiff's IFP status pursuant to 28
U.S.C. § 1915(g) and to conditionally dismiss
Plaintiff's Complaint pending payment of the filing fee.
ECF No. 14. For the reasons that follow, Defendants'
motion is GRANTED. Plaintiff has 30 days from the date of
this Order to pay the $400.00 filing and administrative fees.
If the filing fees are not timely paid, the Clerk of Court
will dismiss the Complaint without prejudice and close this
case without further order.
when a plaintiff commences a civil action in district court
he must pay a $350.00 statutory filing fee and $50.00
administrative fee. 28 U.S.C. §§ 1915(a). Although
the court is authorized to permit a litigant to proceed IFP
if it determines that he is unable to pay the required filing
fee, 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 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). The purpose in enacting this
so-called “three strikes” provision was to deter
prisoners from filing multiple, frivolous civil rights suits.
Tafari v. Hues, 473 F.3d 440, 443-44 (2d Cir. 2007)
(citing Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir.
1997)). Accordingly, a prisoner who has accumulated three
strikes must apply the same cost-benefit analysis before
filing suit as other civil litigants do-that is, the prisoner
must assess whether the result he seeks justifies paying the
entire filing fee in advance, rather than in small increments
from his inmate account. Tafari, 473 F.3d at 443.
Second Circuit has defined a frivolous claim as one that
“lacks an arguable basis either in law or in
fact.” Id. at 442 (citing Neitzke v.
Williams, 490 U.S. 319, 325 (1989)). To determine
whether a dismissal satisfies the failure-to-state-a-claim
prong of Section 1915, courts have looked to Federal Rule of
Civil Procedure 12(b)(6) for guidance. Id. Whether
the dismissal of a prior action constitutes a strike is a
matter of statutory interpretation and thus is an issue for
the court to resolve. Id.
argue that, before Plaintiff filed this action, he had two
lawsuits and one appeal dismissed in the Southern District of
New York and the Second Circuit, respectively, and that each
dismissal constitutes a strike under the Prison Litigation
Reform Act. ECF No. 14. Defendants therefore seek to revoke
Plaintiff's IFP status and conditionally dismiss his
Complaint. Plaintiff argues that his previous lawsuits did
not relate to his conditions of confinement or imprisonment,
and that one was dismissed for reasons not enumerated by
Section 1915(g) and another was dismissed without prejudice.
Thus, he contends that none of the dismissals should count as
strikes. ECF No. 28 at 3-5.
Court finds that the three dismissals Defendants cite
constitute “strikes” under Section 1915(g). On
April 19, 2013, Plaintiff filed a complaint in the Southern
District of New York. See Ceara v. Clark-DiRusso,
No. 13-cv-2626. The sole defendant was Westchester County
Assistant District Attorney Mary Clark-DiRusso, who
prosecuted Plaintiff in Westchester County Supreme Court for
committing a criminal sexual act and endangering the welfare
of a child. ECF No. 14-1, Ex. C. In his complaint,
Plaintiff “allege[d] that Clark-DiRusso violated
[Plaintiff's] right to equal protection and due process
by going out of her jurisdiction and using her position to
influence a tribunal.” Id. at 31 (internal
quotation marks omitted). He further argued that
Clark-DiRusso “lied to the family court about
[Plaintiff's] criminal charges and subjected him to
double jeopardy by prosecuting him in both criminal and
family court.” Id. (internal quotation marks
omitted); see also ECF No. 28 at
12-14. Plaintiff sought injunctive relief and
monetary damages. Id. at 32. On May 20, 2013,
Plaintiff's complaint was dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(iii). Id. at 34.
assert that a dismissal pursuant to Section 1915(e)(2)(B)
constitutes a strike. Plaintiff argues that a dismissal under
Section 1915(e)(2)(B)(iii) does not constitute a strike under
Section 1915(g). “The criteria for accumulating strikes
under § 1915(g) track two of the three grounds upon
which ‘the court shall dismiss [a] case' if they
exist, but do not include the third ground of
‘seek[ing] monetary relief against a defendant who is
immune from such relief.'” Mills v.
Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (quoting 28
U.S.C. § 1915(e)(2)(B)(i)-(iii)). Indeed, “a
dismissal based on immunity will not be frivolous unless the
district court making the § 1915(g) determination deems
the former case to fall within the ...