Harris v. Malloy et al

Filing 7

RULING and ORDER DENYING 2 MOTION for Leave to Proceed in forma pauperis filed by Elbert S. Harris, Jr., VACATING 6 Order on Motion for Leave to Proceed in forma pauperis, Signed by Judge Stefan R. Underhill on 1/13/2014. (Oliver, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ELBERT S. HARRIS, JR.,
Plaintiff,
v.
DANNEL P. MALLOY, et al.,
Defendants.

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CASE NO. 3:13-cv-1577 (SRU)

RULING AND ORDER
The plaintiff, Elbert S. Harris, Jr., currently incarcerated at Osborn Correctional
Institution in Somers, Connecticut, has filed this action pro se. The complaint was received by
the court on October 28, 2013, and Harris was granted in forma pauperis status on January 7,
2014. Upon closer review, the court concludes that in forma pauperis status was improperly
granted.
The Prison Litigation Reform Act amended the statute governing proceedings filed in
forma pauperis. In relevant part, Section 804(d) of the Prison Litigation Reform Act amended 28
U.S.C. § 1915 by adding the following subsection:
(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.
This provision of the Prison Litigation Reform Act requires the denial of plaintiff’s motion to
proceed in forma pauperis in this case. The petitioner previously has had more than three cases
or appeals dismissed as frivolous. See, e.g., Harris v. Lantz, 3:05cv652(PCD) (dismissed Oct.

11, 2005); Harris & Frazier v. Rowland, 3:95cv610(PCD) (dismissed Apr. 6, 1995); Harris v.
Shortall, 3:95cv92(PCD) (dismissed Jan. 12, 1995).
Because the three strikes provision applies in this case, Harris may not bring the present
action without payment of the filing fee absent allegations of “imminent danger of serious
physical injury.” See Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009) (“indigent threestrikes prisoner [may] proceed IFP in order to obtain a judicial remedy for an imminent danger”).
To proceed without prepayment of the filing fee, Harris must meet two requirements. He must
show (1) the imminent danger of serious physical injury he alleges is fairly traceable to unlawful
conduct alleged in the complaint and (2) that a favorable judicial outcome would redress the
injury. See id. at 296-97. In addition, the danger of imminent harm must be present at the time
the complaint is filed. See id. at 296.
Harris names four defendants, Governor Dannel P. Malloy, Connecticut Attorney General
George Jepson, Commissioner of Correction James Dzurenda and Warden Carol Chapdelaine.
The complaint challenges the adequacy of the inmate grievance procedures. Harris has alleged
no facts suggesting that he is in imminent danger of serious physical injury because of the
allegedly inadequate grievance procedures. Thus, he fails to meet the exception.
Conclusion
The order granting Harris’ motion to proceed in forma pauperis [Doc. #6] is hereby
VACATED and the motion to proceed in forma pauperis [Doc. #2] is DENIED. All further
proceedings in this matter shall be held in abeyance for twenty (20) days pending Harris’ delivery
of the filing fee in the amount of $400.00 (cash, bank check or money order made payable to the
Clerk of Court) to the Clerk’s Office, 915 Lafayette Boulevard, Bridgeport, CT 06604. Failure

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to tender the filing fee within twenty (20) days from the date of this Order will result in the
dismissal of this action.
SO ORDERED this 13th day of January 2014, at Bridgeport, Connecticut.

/s/ Stefan R. Underhill
Stefan R. Underhill
United States District Judge

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