Davidson v. City of New York

Filing 5

ORDER denying 2 Motion for Leave to Proceed in forma pauperis: Because plaintiff has had "three strikes" pursuant to 28 U.S.C. § 1915(g), and has not shown that he is "under imminent danger of serious physical injury,&qu ot; his application to proceed in forma pauperis is denied. If plaintiff fails to pay the $350 filing fee within 14 days of the date of this Order, this action will be dismissed. Ordered by Judge John Gleeson on 7/10/2012. (Talbott, Rebecca)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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NOT FOR PUBLICATION

WILLIAM DAVIDSON,

MEMORANDUM
AND ORDER
12-CV-3323 (JG)

Plaintiff,
-againstTHE CITY OF NEW YORK,
Defendant.
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JOHN GLEESON, United States District Judge.

On June 25, 2012, pro se plaintiff William Davidson, currently incarcerated at the
Atlantic County Justice Facility in Mays Landing, New Jersey, filed this action pursuant to 42
U.S.C. § 1983. Plaintiff seeks permission to proceed in forma pauperis pursuant to 28 U.S.C. §
1915(a). Plaintiff’s complaint is largely unintelligible, but it appears that he may be seeking “to
change custody to New York State.” Compl. at 8. Because plaintiff has had “three strikes”
pursuant to 28 U.S.C. § 1915(g), and has not shown that he is “under imminent danger of serious
physical injury,” his application to proceed in forma pauperis is denied. If plaintiff fails to pay the
$350 filing fee within 14 days of the date of this Order, this action will be dismissed.
DISCUSSION
28 U.S.C. § 1915(g) bars prisoners from proceeding in forma pauperis after three
or more previous claims have been dismissed as frivolous, malicious or for failure to state a claim.
Section 1915(g), commonly known as the “three strikes” rule, provides:
In no event shall a prisoner bring a civil action . . . 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 injury.
28 U.S.C. § 1915(g).
Here, plaintiff has at least three disqualifying actions in this Court. See Davidson
v. Any Partnership The City of Record, 11-CV-520 (RRM) (E.D.N.Y. Mar. 11, 2011) (dismissed
for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915A);
Davidson v. New York City, 11-CV-453 (RRM) (E.D.N.Y. Feb. 28, 2011) (dismissed as frivolous
and/or for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §
1915A); Davidson v. City of New York, 10-CV-5833 (RRM) (E.D.N.Y. Dec. 28, 2010) (dismissed
for failure to state a claim on which relief may be granted).
Moreover, plaintiff does not allege any facts indicating that he faces “imminent
danger of serious physical injury.” Chavis v. Chappius, 618 F.3d 162, 167 (2d Cir. 2010). To
satisfy the requirement of imminent danger of serious physical injury under 28 U.S.C. §1915(g), a
plaintiff must “reveal a nexus between the imminent danger [he] alleges and the claims [he]
asserts.” Pettus v. Morgenthau, 554 F.3d 293, 298 (2d Cir. 2009). When a court considers
whether such a nexus exists, the court must consider: (1) whether the imminent danger alleged is
fairly traceable to the unlawful conduct asserted in the complaint; and (2) whether a favorable
judicial outcome would redress the injury. Id. at 298-99. The imminent harm must also be
existing at the time the complaint is filed. Harris v. City of New York, 607 F.3d 18, 24 (2d Cir.
2010). Plaintiff’s assertion that “I am facing danger at limb toward money I need it cites, it can
and will need it now to pay bills, like rent, and for clothing/food,” Compl. at 7, fails to support a
finding that he was under imminent danger of serious injury at the time he filed this action.

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CONCLUSION
Accordingly, plaintiff’s application to proceed in forma pauperis is denied. If
plaintiff fails to pay the $350 filing fee within 14 days of the date of this Order, this action will be
dismissed. Plaintiff is prohibited under 28 U.S.C. § 1915(g) from filing further in forma pauperis
actions unless he is under imminent danger of physical injury.
The Clerk of Court’s Notice to the Warden of the facility where plaintiff is
incarcerated directing that the filing fee be deducted from plaintiff’s inmate account is hereby
vacated. The Clerk shall send a copy of this order to the Warden. The Warden shall not collect
the $350 fee from plaintiff’s inmate account. The Court certifies pursuant to 28 U.S.C. §
1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status
is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45
(1962).

SO ORDERED.

JOHN GLEESON, U.S.D.J.
Dated: Brooklyn, New York
July 10, 2012

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