Boyd v. Roman

Filing 6

MEMORANDUM & ORDER: Plaintiff's request to proceed in forma pauperis is DENIED pursuant to 28 U.S.C. § 1915(g) and the action is DISMISSED without prejudice. The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appe al would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). So Ordered by Judge Nicholas G. Garaufis on 5/27/2014. (c/m to pro se; fwd'd for jgm) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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HENRYB.OYD,

MEMORANDUM & ORDER
Plaintiff,

14-CV-3117 (NGG)
-againstDR. WILLIAM ROMAN,
Defendant.

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NICHOLAS G. GARAUFIS, United States District Judge.
Plaintiff Henry Boyd, currently incarcerated on Rikers Island, filed this pro se action
pursuant to 42 U.S.C. § 1983. (See Compl. (Dkt. 2).) The action was originally filed on April
21, 2014, in the United States District Court for the Southern District of New York and was
transferred to this Court by order dated May 9, 2014. (Transfer Order (Dkt. 4).) Plaintiff seeks
in forma pauperis status (Dkt. 2) and $9 million in damages.

I.

THE PRISON LITIGATION REFORM ACT'S "THREE STRIKES" PROVISION
Pursuant to the Prison Litigation Reform Act:
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 at least three in forma pauperis
actions which have been dismissed as frivolous or malicious or for failure to state a claim. See
Boyd v. New York City, No. 01-CV-6342 (DGT), slip op. (E.D.N.Y. Oct. 26, 2001) (barring
Plaintiff from filing any further in forma pauperis actions in this court pursuant to 28 U.S.C.

§ 1915(g)); Boyd v. New York City, Nos. 01-CV-5677, 01-CV-5676, 01-CV-5655 and 01-CV5069 (DOT), slip op. (E.D.N.Y. Sept. 19, 2001); Boyd v. Dep't of Corr. Servs., Nos. 01-CV4316, 01-CV-4257 (DGT), slip op. (E.D.N.Y. July 11, 2001); Boyd v. New York City, No. 01CV-4257 (DOT), slip op. (E.D.N.Y. July 11, 2001).
Therefore, Plaintiff is barred under the "three-strikes" provision of the in forma pauperis
statute, unless he can show that he is under imminent danger of serious physical injury. 28
U.S.C. §1915(g); see. e.g., Boyd v. New York City, No. 01-MC-0200 (DGT), slip op. (E.D.N.Y.
Oct. 19, 2001 ). Here, Plaintiff alleges that Defendant Dr. William Roman prescribed lithium to
him, which Plaintiff learned had once caused a fatal reaction in a person taking the drug.
(Compl. at 3, ~II (D).) Plaintiff therefore stopped taking the medication. (!QJ Plaintiff further
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alleges that he was moved to another unit and a different doctor was assigned to him. (Id.)
However, Plaintiff does not allege that he was forced to continue taking the medication and
suffered some harm as a result. Therefore Plaintiffs claim against Defendant is insufficient to
show that he was in "imminent danger of serious physical injury" at the time he filed the
Complaint. Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002) ("the language of 191 S(g)
makes clear that the 'imminent danger' exception only applies to danger existing at the time the

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On May 16, 2014, Plaintiff filed a separate civil rights action against Dr. Cross. See Boyd v. Cross, No. 14-CV3154 (NGG).

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complaint is filed."); see also Polanco v. Hopkins, 510 F.3d 152 (2d Cir. 2007) (upholding
constitutionality of§ 1915(g)).

II.

CONCLUSION
Accordingly, Plaintiff's request to proceed in forma pauperis is DENIED pursuant to 28

U.S.C. § 1915(g) and the action is 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. Coppedge v. United States, 369
U.S. 438, 444-45 (1962).
SO ORDERED.

s/Nicholas G. Garaufis
Dated: Brooklyn, New York
Mayd;)_, 2014

NI HOLAS G. GARAU IS
U ited States District Judge

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