Malloy v. Hynes et al

Filing 4

MEMORANDUM AND ORDER: Plaintiff's 2 request to proceed in forma pauperis is denied pursuant to 28 U.S.C. § 1915(g). In order to proceed with this action, plaintiff must pay the filing fee of $ 350.00 within 30 days fr om the entry of this Order. Plaintiff is advised that the complaint may be dismissed in whole or in part, even if he pays the filing fee, under 28 U.S.C. § 1915 A. If plaintiff fails to pay the filing fee within 30 days, the complaint shall be dismissed without prejudice. 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. SO ORDERED by Judge Allyne R. Ross, on 12/19/2012. C/mailed to pro se Plaintiff. (Latka-Mucha, Wieslawa)

,FU-i:U

IN CLERK'S OFFICE
(/.S. DISTR1r:T COURT E.D.N.Y.

~: DEC"

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

_________________________________ x

2012

*

BROOKLYN OFFICE
12-CV-6076 (ARR)(LB)

ANTHONY MALLOY,

NOT FOR ELECTRONIC
OR PRINT PUBLICATION

Plaintiff,
-againstCHARLES J. HYNES, Brooklyn District Attorney; :
NANCY STILLMAN, Assistant District Attorney;
JEANNETTE LUKOWSKI, Assistant District
Attorney; JOHN DOE/JANE DOE of Brooklyn
Legal Aid Director; NOHA MOMTAZ;
T AHRIR ARAF A, Staff Attorney; CAPTAIN
NELSON ofRNDC C-74; CORRECTIONAL
OFFICER QUINONES ofRNDC C-74; Ms.
JASMINE QUINONES; CORRECTIONAL
OFFICER MS. BAPTISTS ofRNDC C-74;
CORRECTIONAL OFFICER BAPTISTS
HUSBAND JOHN DOE; SGT. MCGREGOR,
3774 ofNYPD PDU 75 1\ DET. GRAYSON,
5799 ofNYPD PDU 75 th ; DET. QUASKE,

MEMORANDUM
AND ORDER

Defendants.
_________________________________ X
ROSS, United States District Judge:
Plaintiff, a pro se prisoner currently incarcerated at Rikers Island Correctional Facility's
George Motchan Detention Center ("GMDC") commenced this action pursuant to 42 U.S.C. §
1983, alleging that he was falsely arrested for a robbery which occurred on February 6, 2012 and
that he felt unsafe in the facility in which he was previously housed. He seeks damages and to
have the "robbery be era[sed] off my record." Compl. at 5. For the reasons set forth below,
plaintiffs request to proceed in forma pauperis is denied and he is ordered to pay the $350 filing
fee to proceed with this action.

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The Prison Litigation Reform Act provides:
In no event shall a prisoner bring a civil action ... 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). While incarcerated, plaintiff has filed more than three informa pauperis
actions which have been dismissed as frivolous, malicious or for failure to state a claim. See

Malloy v. Thompson, 06-CV-1510 (LEK) (N.D.N.Y. Feb. 7,2007) (collecting six cases in
Northern and Southern Districts of New York dismissed as frivolous and/or for failure to state a
claim). Plaintiff also states that he has three strikes against him. See Dkt. # 1 at 34.
For a three-strikes litigant to qualify for the imminent danger exception, his complaint
"must reveal a nexus between the imminent danger it alleges and the claims it asserts." Pettus v.

Morgenthau, 554 F.3d 293, 298 (2d Cir. 2009). When determining whether the requisite
relationship is present, a court must examine "( 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." Id. at
298-99 (emphasis in original). Moreover, for a plaintiff to qualify for the imminent danger
exception, the danger must be present when he files his complaint. See Malik v. McGinnis, 293
F.3d 559, 563 (2d Cir. 2002) ("[T]he language of § 1915(g) makes clear that the 'imminent
danger' exception only applies to danger existing at the time the complaint is filed. ").
Plaintiff alleges that between February and June 2012, prison staff came into his unit
wearing "black Klan robes" and "white robes and colorful faces." Compl. At 2-3. He asserts
that he is "suffer[ing[ mental anguish," "having many scary feeling[s]," and is "afraid for my life
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in danger." Id. at 3. Plaintiff does not flllege any imminent danger of physical injury. Further,
he says that he complained to "security deputy superintendents" and, as a result of his
complaints, he was moved to a different unit and then to the jail where he is currently
incarcerated. Id. at 4. Plaintiff then waited until December 4,2012 to file this action. Id. at 7.
Given the length of time between the allegedly dangerous conditions and the filing of plaintiffs
complaint, the court finds that plaintiff was not in imminent danger of serious physical injury
pursuant to 28 U.S.C. § 1915(g) at the time this complaint was filed, and therefore does not
qualify for the imminent danger exception to the three strikes rule.
CONCLUSION
Plaintiffs request to proceed in forma pauperis is denied pursuant to 28 U.S.C. §
1915(g). In order to proceed with this action, plaintiff must pay the filing fee of$350.00 within
thirty days from the entry of this Order. Plaintiff is advised that the complaint may be dismissed
in whole or in part, even ifhe pays the filing fee, under 28 U.S.C. § 1915A. See Carr v. Dvorin,
171 F.3d 115, 116 (2d Cir. 1999). If plaintiff fails to pay the filing fee within 30 days, the
complaint shall be dismissed without prejudice. 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.

/S/ Judge Ross
Allyne R.
United Stat

Dated: Brooklyn, New York
December 19,2012
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