Campbell v. Nassau County Sheriff Department of Corrections et al
MEMORANDUM AND ORDER: Campbell's requests to proceed in forma pauperis are denied pursuant to the three-strikes provision of § 191S(g). If Campbell wishes to proceed with these suits, he must submit the $400.00 filing fee in each action within 14 days of the date of this Order. If he fails to pay either filing fee within that time, the corresponding complaint shall be dismissed. Ordered by Judge Carol Bagley Amon on 11/15/2017. (Fernandez, Erica)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
5 fW 1 6 2317 it
NOT FOR PUBLICATION
MEMORANDUM AND ORDER
-againstNASSAU COUNTY SHERIFF
DEPARTMENT OF CORRECTIONS;
SOT. CURTIN #81; OFFICER
NOT FOR PUBLICATION
MEMORANDUM AND ORDER
-againstNASSAU COUNTY SHERIFF
DEPARTMENT OF CORRECTIONS;
SGT. CURTIN #81; OFFICER
MCKINNEY #2285; OFFICER
AMON,United States District Judge:
Plaintiff Glen Campbell, who is currently incarcerated at the Nassau County Correctional
Center,initiated the instant actions in this Court by filing two pro se complaints alleging violations
of 42 U.S.C. § 1983 related to the conditions of his confinement. Campbell requested leave to
proceed in forma pauneris rather than pay the normal filing fee in both actions. For the reasons
stated below, those requests are denied.
Campbell has filed at least three prior suits in this Court related to his confinement in the
Nassau County Correctional Center and on Rikers Island. See Campbell v. N.Y.C. Dep't of Corr..
No. 13-CV-7088 (CBA)(LB)(filed Nov. 27, 2013)(^"Campbell fh Campbell v. Armor Corr.
Health. Inc.. No. 14-CV-504 (CBA)(LB)(filed Jan. 23, 2014)('"Campbell 11"!: Campbell v.
Nassau Ctv. Sheriff Dep't of Corr.. No. 14-CV-505(CBA)
(LB)(filed Jan. 23,2014)("Campbell
III"). In each action, Campbell sought— and, in Campbell I and Campbell II. ultimately received
—^permission to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. However, after
conducting the sua sponte review required by 28 U.S.C. § 1915(e)(2), the Court dismissed each
action for failure to state a claim upon which relief can be granted. See Campbell L No. 13-CV-
7088 (CBA)(LB), 2014 WL 354767 (E.D.N.Y. Jan. 29, 2014); Campbell II. No. 14-CV-504
(LB),2014 WL 4207612(E.D.N.Y. Aug. 25,2014); Campbell III. No. 14-CV-505(CBA)
(LB)(E.D.N.Y. July 30, 2014)(D.E.# 4).
On October 15, 2014 and December 10, 2014,following the dismissal of his prior actions,
Campbell filed the present actions. Campbell v. Nassau Ctv. Sheriff Dep't of Corr.. No. 14-CV6132(CBA)
(LB)(E.D.N.Y. Oct. 15,2014)(D.E.# 1)("Campbell VF"): Campbell v. Nassau Ctv.
Sheriff Dep't of Corr.. No. 14-CV-7330 (CBA)(LB) (E.D.N.Y. Dec. 10, 2014) (D.E. # 1)
("Campbell V"J. The complaints in Campbell IV and Campbell V both center on Campbell's
claim that corrections officers falsely accused him of smuggling a pair of eyeglasses into the
Nassau County Correctional Center and concocted a false confession by him to support that
allegation. Campbell IV. No. 14-CV-6132(D.E. #1); Campbell V. No. 14-CV-7330(D.E. #1).
Based on those allegedly false reports of misconduct, Campbell was placed in keeplock for 48
days, he was barred from further contact visits, and his wife was barred from visitation for a
period.' Campbell IV. No. 14-CV-6132 (D.B. # 1) at 4, 8-9. Campbell alleges that those
punishments caused him to suffer a number of psychological maladies for which he later sought
counseling. Campbell IV. No. 14-CV-6132 (D.E. # 1) t IV.A; Campbell V. No. 14-CV-7330
(D.E. # 1) If IV.A. He now requests a large monetary award to compensate for his "pain[,]
suffering[,][and] humiliation that the[officers] brought upon [him] and his family."^ Campbell
IV, No. 14-CV-6132(D.E. # 1)If V; Campbell V. No. 14-CV-7330(D.E.# 1)If V.
As in his prior actions, Campbell requests leave to proceed in forma pauperis in both ofthe
pending actions, rather than pay the standard filing fee. Campbell IV.No. 14-CV-6132(D.E.# 2);
Campbell V. No. 14-CV-7330(D.E.# 2).
Prison Litigation Reform Act
Congress enacted the Prison Litigation Reform Act("PLRA")to deter prisoners from filing
meritless actions. Tafari v. Hues. 473 F.3d 440,443(2d Cir. 2007). In order to stem the perceived
tide of baseless prisoner claims, the PLRA statutorily limited the ability of judges to grant
'"Keeplock is a fortn of disciplinary confinement segregating an inmate from other inmates and depriving him of
participation in normal prison activities; it is also used as an administrative confinement for prehearing housing of
inmates facing disciplinary hearings." Green v. Bauvi.46 F.3d 189, 192(2d Cir. 1995).
^ The exact amount Campbell seeks is somewhat unclear as he has requested $2 million in damages in Campbell VI
and $4 million in Cambell V. Campbell IV. No. 14-CV-6132(D.E. # I)^ V; Campbell V. No. I4-CV-7330 (D.E.
# 1)^ V. Because that discrepancy is irrelevant to the pending requests—and because Campbell could not recover
damages for emotional harm in any event, see 42 U.S.C. § 1997e(e)—^the Court need not resolve that discrepancy in
prisoners' requests to proceed in forma pauperis. See Nicholas v. Tucker. 114 F.3d 17,19(2d Cir.
1997). By restricting prisoners' ability to file free suits, the PLRA "forc[ed them] to go through
the same thought process non-inmates go through before filing a suit, i.e., is filing this suit worth
the costs?" Tafari. 473 F.3d at 443 (citation omitted).
The PLRA was particularly concerned with those prisoners who tax the courts by
repeatedly filing meritless suits. Section 804, the so-called "three-strikes rule," bars a prisoner
from proceeding in forma nauperis 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 ofthe
United States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may he granted,
unless the prisoner is under imminent danger of serious physical
28 U.S.C. § 1915(g). A dismissal on one of the three statutorily enumerated grounds counts as a
strike at the time it is entered by the district court, even if the prisoner subsequently appeals that
judgment. See Coleman v. Tollefson. 135 S. Ct. 1759,1763 (2015).
Under the plain language of the PLRA,a dismissal for failure to state a claim counts as a
strike. 28 U.S.C. § 1915(g).
In all three of Campbell's prior actions, the Court dismissed for failure to state a claim, but
did so either without prejudice or with leave to amend. See Campbell 1. 2014 WL 354767, at *1
("Campbell's amended complaint is dismissed for failure to state a claim upon which relief may
be granted. Campbell is granted thirty (30) days leave to submit a second amended complaint.");
Campbell II. 2014 WL 4207612, at *1 (same); Campbell III. No. 14-CV-505 (D.E. # 4) at 5
(dismissing the complaint "without prejudice for failure to state a claim upon which relief may be
granted" (citing 28 U.S.C. § 1915A) and granting Plaintiff leave to "pursue any valid claims he
may have in state court"). Campbell failed to amend his complaint in either Campbell I or
Campbell II. and judgment was entered dismissing both cases pursuant to 28 U.S.C. § 1915A,
which requires courts to "dismiss the complaint, or any portion of the complaint, if the complaint
. . . is frivolous, malicious, or fails to state a claim upon which relief may be granted." See
Campbell I. No. 13-CV-7088 (D.E. # 10); Campbell II. No. 14-CV-504(D.E.# 6). In Campbell
n, the entry ofjudgment also cited § 1915(e)(2)(B), which like § 1915A, requires dismissal for
actions that are "frivolous or malicious" or that "fail to state a claim on which relief may be
granted." Judgment was likewise entered dismissing Campbell III "for failure to state a claim
upon which relief may be granted." No. 14-CV-505(D.E.# 5). Campbell appealed the dismissal
in Campbell II. which the Second Circuit dismissed, finding that it "lack[ed] an arguable basis
either in law or in fact," and citing to 28 U.S.C. § 1915(e). Campbell II, No. 14-CV-504 (D.E.
Although the Second Circuit has not decided this issue, most other circuits to confront it
have held that since § 1915(g) does not distinguish between dismissals with prejudice and those
without, a strike results from any dismissal made on one of the three enumerated grormds. See
Orr V. Clements. 688 F.3d 463, 465 (8th Cir. 2012)("The text of § 1915(g) draws no distinction
between dismissals with prejudice and dismissals without prejudice."); Paul v. Marberrv,658 F.3d
702,704(7th Cir. 2011)("A dismissal is a dismissal, and provided that it is on one ofthe grounds
specified in section 1915(g) it counts as a strike, whether or not it's with prejudice." (internal
citation omitted)); O'Neal v. Price. 531 F.3d 1146, 1154(9th Cir. 2008)("Because § 1915(g)...
does not distinguish between dismissals with and without prejudice, . .. a dismissal without
prejudice may count as a strike."); Pointer v. Wilkinson. 502 F.3d 369, 376—77 (6th Cir. 2007)
(holding that "if a complaint is dismissed in part for failure to exhaust and in part for failure to
state a claim or other grounds stated in § 1915(g), the dismissal is a strike"). But see McLean v.
United States. 566 F.3d 391, 396 (4th Cir. 2009)(holding that a dismissal for failure to state a
claim must prejudice the filing of a subsequent complaint to incur a strike). Because the Court
finds the strained logic utilized by the Fourth Circuit unpersuasive, the Court joins the majority
consensus that the plain language of § 1915(g) imposes a strike whenever a prisoner's action is
dismissed for failure to state a claim, regardless of whether that dismissal is with or without
Cases in this Circuit refusing to impose a strike for actions not enumerated by the statute
are not to the contrary.
Tafari. 473 F.3d at 443(holding that a dismissal of premature appeal
is not a strike); Snider v. Melindez. 199 F.3d 108,115(2d Cir. 1999)(holding that a dismissal for
failure to exhaust is not a strike); McNair v. Kelly. 13-CV-728 (RJS), 2013 WL 4574247, at '■'1
(S.D.N.Y. Aug. 26,2013) (holding that dismissals for failure to prosecute, procedural default, and
lack of subject matter jurisdiction do not coimt as strikes). Each of those decisions relies on a two-
step analysis that is inapplicable here. First, they examine the plain text of § 1915(g) and conclude
that by enumerating three specific events that trigger a strike. Congress necessarily rejected others.
See, e.g.. Tafari. 473 F.3d at 443 (noting that immunity is not an enumerated basis for a strike,
even though § 1915(e) requires dismissal if a defendant is immvme from suit). Second, they
confirm that understanding by finding that the PLRA's primary purpose—^to weed out baseless
litigation—^would be ill-served by imposing strikes where prisoners merely make procedural
missteps, rather than filing meritless claims. See Snider. 199 F.3d at 111.
Indeed, the logic of those cases supports the Court's conclusion here because each of
Campbell's prior suits was, in fact, ultimately dismissed for failure to state a claim, one of the
triggering events expressly enumerated in § 1915(g). See Tafari.473 F.3dat443(looking to plain
language of the statute to determine when a dismissal constitutes a strike). Since the statutory
language commands that such a dismissal results in a strike, no further interpretation is required.
See In re Bamet.737 F.3d 238,246(2d Cir. 2013)("Where the statute's language is plain, the sole
function ofthe courts is to enforce it according to its terms."(internal citation and quotation marks
omitted)). Moreover, such a finding comports with the underlying purpose of the PLRA because
courts "assume legislative purpose is expressed by the ordinary meaning of the text, absent
persuasive reasons to do otherwise." United States v. Stultz. 356 F.3d 261,267(2d Cir. 2004).
Even ifa dismissal with leave to amend,standing alone, does not constitute a strike because
only the complaint—^but not the "action" itself—^has been dismissed, see, e.g., O'Neal. 531 F.3d
at 1158 (9th Cir. 2008)(Thomas, J., concurring in part and dissenting in part), in both Campbell I
and Campbell IT.judgment was ultimately entered dismissing the action on the basis ofCampbell's
failure to state a claim. Each was accordingly an "action that was dismissed on the groimds that it
... fails to state a claim upon which relief may be granted," and thus coimts as a strike under the
plain language of § 1915(g). See, e.g.. Coleman v. Tollefson. 135 S. Ct. 1759, 1764 (2015)
(holding that a strike takes effect upon "a trial court's judgment"); Washington v. L.A. Ctv.
Sheriffs Dep't. 833 F.3d 1048, 1057 (9th Cir. 2016)(explaining that a PLRA strike is assessed
"only when the 'case as a whole' is dismissed for a qualifying reason under the Act").
In addition, the Second Circuit has held that that a plaintiff can incur a separate strike for
the dismissal ofan appeal"when a complaint and a subsequent appeal are independently dismissed
for grounds listed in § 1915(g)." Chavis v. Chappius. 618 F.3d 162, 165 (2d Cir. 2010).
Accordingly, Campbell's appeal of Campbell Ik which the Second Circuit dismissed as "lacking
arguable basis either in law or in fact"—^meaning it was "frivolous," Neitzke v. Williams,490 U.S.
319, 325 (1989)—constitutes a fourth strike.
Therefore,the Court concludes that the dismissals in Campbell 1.11, and III amount to three
strikes under the PLRA,and the appeal from Campbell II is a fourth strike. As a result, the PLRA
bars him from bringing the instant action in forma pauperis miless he can show an imminent danger
of serious bodily harm. 28 U.S.C. § 1915(g).
No Danger of Imminent Serious Injury
"[F]or a prisoner to qualify for the imminent danger exception, the danger must be present
when he files his complaint—in other words,a three-strikes litigant is not excepted from the filing
fee if he alleges a danger that has dissipated by the time a complaint is filed." Pettus v.
Morgenthau. 554 F.3d 293, 296 (2d Cir. 2009)(citation omitted). And there must be a nexus
between the threat the prisoner claims to face and the claims asserted in his complaint such that
(1)the danger of physical injury is "fairly traceable to unlawful conduct asserted in the complaint"
and (2)"a favorable judicial outcome would redress that injury." Id at 298-99 (emphasis and
Even afforded the most liberal reading, Price v. City of N.Y.. 797 F. Supp. 2d 219, 222
(E.D.N.Y. 2011),Campbell's complaints are devoid ofany facts establishing that he is in imminent
danger of serious physical harm. Larocco v. Jackson. No. lO-CV-1651 (NGG)(LB), 2010 WL
5067825, at *3(E.D.N.Y. Oct. 21,2010). Thus,the imminent danger exception is inapplicable to
Campbell's Response to the Court's Order to Show Cause
On September 8, 2015, the Court ordered Campbell to show cause why the three-strikes
rule does not mandate denial of his request to proceed in forma nauneris. Campbell IV. No. 14-
CV-6132(D.E. # 5); Campbell V. No. 14-CV-7330 (D.E. # 5). Campbell did so on October 5,
2015. Campbell V. No. 14-CV-7330(D.E.# 7). Rather than explain why his three strikes do not
necessitate denial of his current requests to proceed in forma pauperis. however, Campbell's only
response was to take issue with the dismissals of Campbell I and Campbell III. He stated that
Campbell I was ongoing in state court because his lawyer had taken it out of federal court. Id
This misstates the facts: Campbell I was dismissed for failure to state a claim, as discussed above,
and Campbell was not represented. Campbell has offered no explanation for why Campbell I
should not count as a strike.
id Campbell stated that in Campbell IIL he did state a claim "for
my clothes," but "put it in the reason for the claim instead of separate." Id Even liberally
interpreted, this explanation does not alter the reasoning above that the dismissal of Campbell III
constitutes a strike. Finally, Campbell did not address his strike from the dismissal of Campbell
n at all. Id. Campbell has therefore failed to show cause why the three-strikes rule does not
mandate denial of his latest requests to proceed in forma pauperis.
Campbell's requests to proceed in forma pauperis are denied pursuant to the three-strikes
provision of§ 1915(g). IfCampbell wishes to proceed with these suits, he must submit the $400.00
filing fee in each action within 14 days ofthe date of this Order. If he fails to pay either filing fee
within that time, the corresponding complaint shall be dismissed.
s/Carol Bagley Amon
Brooklyn, New York
Carol Bagiey Amor
United States K^ct Judge
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