MILLER v. UNITED STATES OF AMERICA et al
Filing
11
ORDER denying Motion for Leave to Proceed in forma pauperis; For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is DENIED. Plaintiff is directed to pay the $400.00 filing fee within fourteen (14) days o f the date of this Order, and failure to do so will lead to the dismissal of his claims without prejudice and without further notice and judgment shall enter. Plaintiff is advised that his payment of the filing fee does not exempt him from the requir ements of 28 U.S.C. § 1915A. 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 7/21/2014. C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
DANIEL MILLER
Plaintiff,
ORDER
14-CV-2785(JS)(WDW)
-againstUNITED STATES OF AMERICA,
and U.S. ATTORNEY GENERAL
ERIC H. HOLDER, JR.,
Defendants.
----------------------------------X
APPEARANCES:
For Plaintiff:
Daniel Miller, 12003565, pro se
Nassau County Correctional Center
100 Carman Ave.
East Meadow, NY 11554
For Defendants:
No appearances
SEYBERT, District Judge:
Incarcerated pro se plaintiff Daniel Miller (“Plaintiff”)
has “three strikes” pursuant to 28 U.S.C. § 1915(g), and has not
alleged that he is “under imminent danger of serious physical
injury.”1
1
Accordingly,
his
application
to
proceed
in
forma
Since 2000, Plaintiff has filed twenty-one (21) in forma
pauperis civil actions, almost all of which have been dismissed:
Miller v. U.S., No. 00-CV-3088(CBA) (withdrawn); Miller v. Cnty.
of Nassau, No. 00-CV-6124(JS) (dismissed for failure to state a
claim upon which relief may be granted); Crosby v. Walsh, No. 03CV-4897(ARR) (dismissed in forma pauperis complaint filed by four
inmates, including Miller, for failure to state a claim); Miller
v. Reilly, No. 05-CV-0611(JS) (settled); Miller v. Cnty. of
Nassau, 467 F. Supp. 2d 308 (E.D.N.Y. 2006) (dismissed for
failure to state a claim upon which relief may be granted);
Miller v. Reilly, No. 06-CV-3727(ADS) (settled); Miller v. Reily,
No. 06-CV-6485(JS) (withdrawn); Miller v. Zerillo, No. 07-CV1687(JS) (dismissed as moot and unexhausted under the PLRA);
Miller v. Zerillo, No. 07-CV-1719(JS) (dismissed as moot and
unexhausted under the PLRA); Miller v. Lindsay, No. 07-CV2556(JS) (dismissed as moot); Miller v. Alexander, No. 07-CV-3533
pauperis is DENIED.2
Plaintiff is directed to pay the $400.00
filing fee within fourteen (14) days of the date of this Order, and
a failure to do so will lead to the dismissal of his claims without
further notice and judgment shall enter. Plaintiff is advised that
his payment of the filing fee does not exempt him from the
requirements of 28 U.S.C. § 1915A and the Court is required to
dismiss a complaint if the action is frivolous or malicious; fails
to state a claim upon which relief may be granted; or seeks
monetary relief against a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2)(B)(i-iii); 28 U.S.C. § 1915A(a) & (b).
(JS) (dismissed as moot); Miller v. Reilly, No. 08-CV-1863(TCP)
(dismissed as unexhausted and moot); In re Daniel Miller, No. 12MC-0512(JBW) (case closed by Order dated August 6, 2012 and
Plaintiff’s submission concerning “Terrorist Acts” was forwarded
to the U.S. Marshal); Miller v. Spizatto, No. 12-CV-2511(JS)
(dismissed unexhausted § 2241 petition claiming excessive bail);
Miller v. Cnty. of Nassau, No. 12-CV-4164(JS) (WDW); Miller v.
Smith, No. 12-CV-4378(JS); Miller v. County of Nassau, 12-CV4466(JS)(WDW); Miller v. Cnty. of Nassau, No. 12-CV-4430(JS)
(WDW) (closed by Order dated October 15, 2012); Miller v. Cnty.
of Nassau, 12-CV-4549(JS) (closed by Order dated October 15,
2013); and Miller v. Cnty. of Nassau, 12-CV-4550(JS) (closed by
Order dated October 15, 2012).
2
Given that this Court dismissed the three most recent in forma
pauperis complaints filed by Plaintiff, Miller v. Cnty. of
Nassau, No. 12-CV-4430(JS) (closed by Order dated October 15,
2012); Miller v. Cnty. of Nassau, 12-CV-4549(JS) (closed by
Order dated October 15, 2013); and Miller v. Cnty. of Nassau, 12CV-4550(JS) (closed by Order dated October 15, 2012), finding him
barred from proceeding in forma pauperis under the “three
strikes” provision of 28 U.S.C. 1915(g), Plaintiff attempted to
circumvent this bar by filing the instant Complaint in the United
States District Court for the District of Columbia. The
Complaint was transferred here by Order dated April 9, 2014.
2
DISCUSSION
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
physical injury.
28 U.S.C. § 1915(g).
Here, Plaintiff has at least three disqualifying actions:
Miller v. Cnty. of Nassau, 467 F. Supp. 2d 308 (E.D.N.Y. 2006),
Miller v. Cnty. of Nassau, No. 00-CV-6124(JS)(WDW), and Miller v.
U.S.A., No. 00-CV-2082 (S.D.N.Y. Mar. 17, 2000).3
3
Indeed, Miller has conceded that two of his actions are
disqualifying: Miller v. Cnty. of Nassau, 467 F. Supp. 2d 308
(E.D.N.Y. 2006) and Miller v. Cnty. of Nassau, No. 00-CV-6124(JS)
(both cases were dismissed for failure to state a claim upon
which relief may be granted). See Miller v. Cnty. of Nassau, 12CV-4159, Oct. 3, 2013 Mem. & Order, Seybert D.J. at 7.
Consistent with the Second Circuit’s instruction, the Court has
relied on the docket report for the case that pre-dates
electronic case filing (“ECF”) to conclude that it is a “strike”
in accordance with § 1915(g)’s criteria. See Harris v. City of
N.Y., 607 F.3d 18, 23-24 (2d Cir. 2010) (“Nothing in the PLRA or
the caselaw of this or other courts, however, suggests that
courts have an affirmative obligation to examine actual orders of
dismissal.”) (citing Thompson v. Drug Enforcement Admin., 492
F.3d 428, (D.C. Cir. 2007) (accepting docket reports indicating
that prior dismissals satisfied at least one of the § 1915(g)
criteria for a strike); Andrews v. King, 398 F.3d 1113, 1120 (9th
Cir. 2005) (“[D]istrict court docket records may be sufficient to
show that a prior dismissal . . . counts as a strike”) (add’l
3
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.”
v. Morgenthau, 554 F.3d 293, 298 (2d Cir. 2009).
Pettus
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.
99.
Id. at 298-
The imminent harm must also exist at the time the complaint is
filed.
Harris v. City of N.Y., 607 F.3d 18, 24 (2d Cir. 2010).
Here, Plaintiff does not allege any facts that the Court
can reasonably construe to support a finding that Plaintiff was
under imminent danger of serious injury at the time he filed this
action. Rather, Plaintiff complains generally about the conditions
of and the medical care provided at the Nassau County Correctional
Center.
Upon careful review of the Complaint, the Court finds no
conduct alleged that rises to a level where an imminent danger of
serious
harm
exists
to
Plaintiff.
Wholly
absent
are
any
allegations suggesting that, at the time the Complaint was filed,
Plaintiff was in imminent danger of serious harm. See, e.g., Malik
citation omitted).)
4
v.
McGinnis,
293
F.3d
559,
562-63
(2d
Cir.
2002)
(“Because
§ 1915(g) uses the present tense in setting forth the imminent
danger exception, it is clear from the face of the statute that the
danger must exist at the time the complaint is filed.”); Saia v.
Williams,
No. 10-CV-624(RNC), 2011 WL 3962269, *1 (D. Conn. Mar.
31, 2011)
(“[A]llegations of past wrongs do not show an imminent
danger existed when this action was brought.”). Accordingly, given
Plaintiff’s long history of vexatious litigation, and in the
absence of any claim concerning a danger of imminent serious
physical injury, Plaintiff is now barred from filing this case in
forma pauperis and his application is thus DENIED.
Plaintiff is
directed to pay the $400.00 filing fee within fourteen (14) days of
the date of this Order, and a failure to do so will lead to the
dismissal of this action without further notice and judgment shall
enter.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is DENIED.
Plaintiff is directed to
pay the $400.00 filing fee within fourteen (14) days of the date of
this Order, and failure to do so will lead to the dismissal of his
claims without prejudice and without further notice and judgment
shall enter.
Plaintiff is advised that his payment of the filing
fee does not exempt him from the requirements of 28 U.S.C. § 1915A.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
5
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:
July
21
, 2014
Central Islip, New York
6
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