Justice v. C/O Merchant et al

Filing 7

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. Plaintiff's application to proceed in forma pauperis is GRANTED. The Clerk of the Court is directed to forward copies of the summonses for Defendants Merchant and Santiago, the Complaint and this Order to the United States Marshal Service for service on the named Defendants forthwith. The Clerk of the Court shall send a copy of the Complaint and this Order to the Nassau County Attorney pursuant to Valentin v. Dinkins. The Nassau County Attorney is hereby requested to produce the information specified above regarding the identities and service addresses of the corrections officers by January 7, 2013. Once this information is provided, Plaintiff's Complaint sh all be deemed amended to reflect the full names of the John Doe Defendants, summonses shall be issued and the Court shall direct service on these Defendants. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order 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 Joanna Seybert on 12/5/12. C/M (Valle, Christine)

FILED 
CLERK 

12/5/2012 3:04 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
ALLAH F. JUSTICE,
Plaintiff,
-against-

ORDER
12-CV-5103(JS)(WDW)

C/O MERCHANT, C/O SANTIAGO,
C/O JOHN DOES # 1-2,
Defendants.
----------------------------------X
APPEARANCES:
For Plaintiff:
Allah F. Justice, Pro Se
11007727
Nassau County Correctional Center
100 Carman Avenue
East Meadow, New York 11554
For Defendants:

No Appearances

SEYBERT, District Judge:
On October 17, 2012, incarcerated pro se plaintiff Allah
F.

Justice

(“Plaintiff”)

filed

his

ninth

in

forma

pauperis

Complaint in this Court pursuant to Section 1983 accompanied by an
application to proceed in forma pauperis.1

The instant Complaint,

against Nassau County Corrections Officers Merchant, Santiago, and

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Plaintiff’s other actions are: Justice v. Nassau County Jail,
et al., 07-CV-3800(JS)(WDW)(dismissed on Dec. 1, 2009 for failure
to prosecute); Justice v. Reilly, 08-CV-3266(JS)(WDW)
(dismissed on Sept. 10, 2009 for failure to prosecute);
Justice v. Corporal McFadden, 08-CV-3918 (JS)(WDW) (dismissed on
Sept. 9, 2009 for failure to prosecute); Justice v. Corporal
McGovern, 11-CV-5076(JS)(WDW) (partial dismissal on Dec. 6,
2011 for failure to state a claim); Justice v. Sposato, et
al., 11-CV-5946(JS)(WDW) (dismissed on March 7, 2012 for failure
to state a claim and with leave to amend); Justice v. Sposato, et
al., 12-CV-0473(JS)(WDW) (dismissed for failure to state a claim
on April 9, 2012); Justice v. Nassau County Police, et al.,
12-CV-2061(JS)(WDW)(Report and Recommendation dated Oct. 12, 2012
recommending dismissal for failure to state a claim); Justice v.
Rice, et al., 12-CV-2865(JS)(WDW)(dismissed on July 6, 2012 for
failure to state a claim).

two unidentified “John Doe” corrections officers (collectively,
“Defendants”), purports to allege that Plaintiff was forced to
strip and was then assaulted by the Defendants while in his cell at
the

Nassau

Correctional

Center

on

September

29,

2012

at

approximately 10:30 p.m.
Upon review of the application to proceed in forma
pauperis,

the

Court

finds

that

Plaintiff’s

financial

status

qualifies him to commence this action without prepayment of the
Court’s filing fee.

The Court has considered whether the “three

strikes” provision of the Prison Litigation Reform Act (“PLRA”)
would bar Plaintiff from filing this action in forma pauperis and
finds that it does not.

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 upon which relief may be granted.

Section 1915(g),

often referred to 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). The Court has reviewed each of the dismissals
of Plaintiff’s prior cases to determine whether such dismissals

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count as strikes for purposes of the PLRA.

Dismissals based on a

plaintiff’s failure to prosecute do not count as strikes. See,
e.g., Johnson v. Truedo, No. 11-CV-0627, 2012 WL 3054114, *4
(N.D.N.Y. June 15, 2012) (Report and Recommendation Adopted by 2012
WL 3062293 (N.D.N.Y. July 26, 2012)) (citing Toliver v. Perri, No.
10-CV-3165, 2011 WL 43461, at *1 (S.D.N.Y. Jan. 6, 2011) (add’l
citation omitted). Similarly, dismissals that post-date the filing
of the current case generally should not be counted in determining
whether to bar in forma pauperis status in the current case.

See

Read v. Bill, No. 11-CV-6367, 2011 WL 6148635, *3 (W.D.N.Y. Oct.
21,

2011);

Eady

v.

Lappin,

No.

05-CV-0824,

2007

WL

1531879

(N.D.N.Y. May 22, 2007). Given these exceptions, Plaintiff has not
yet accumulated three strikes despite his nine in forma pauperis
cases.
Accordingly, Plaintiff’s application to proceed in forma
pauperis is GRANTED. The Clerk of the Court is directed to forward
copies of the summonses for Defendants Merchant and Santiago, the
Complaint and this Order to the United States Marshal Service for
service on the named Defendants forthwith.
However, the United States Marshal Service will not be
able to serve the intended “John Doe” Defendants without more
information. Accordingly, the Clerk of the Court shall send a copy
of the Complaint and this Order to the Nassau County Attorney.
Pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per

3

curiam), the Court requests that Nassau County Attorney ascertain
the full names and service address(es) of the corrections officers,
who were involved in the incident described in the Complaint to
have occurred on September 29, 2012 at approximately 10:30 p.m. at
the Nassau County Correctional Center.

The Nassau County Attorney

need not undertake to defend or indemnify these individuals at this
juncture.

This Order merely provides a means by which Plaintiff

may name and properly serve the Defendants as instructed by the
Second Circuit in Valentin.

The Nassau County Attorney is hereby

requested to produce the information specified above regarding the
identities and service addresses of the corrections officers by
January 7, 2013.

Once this information is provided, Plaintiff’s

Complaint shall be deemed amended to reflect the full names of the
John Doe Defendants, summonses shall be issued and the Court shall
direct service on these Defendants.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order 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,

82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

December 5, 2012
4

Central Islip, NY

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