Jackson v. The County of Nassau et al

Filing 9

ORDER denying 2 Motion for Leave to Proceed in forma pauperis. SO ORDERED that plaintiff's application to proceed in forma pauperis is DENIED. Plaintiff is directed to pay the three hundred and fifty dollar ($350.00) filing fee within fo urteen (14) days of the date of this Order, or the Court will dismiss this action without further notice. The Court also 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. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 3/18/2016. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------------X
ERWIN JACKSON,
Plaintiff,

FILED 
CLERK 

3/18/2016 12:10 pm

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

ORDER
15-CV-7218(SJF)(AKT)

-againstTHE COUNTY OF NASSAU, in its capacity as an [sic]
Municipality; MERYL J. BERKOWITZ, in her official
and individual capacity; and AMES C. GREWERT, in
his official and individual capacity;
Defendants.
-------------------------------------------------------------------X
FEUERSTEIN, District Judge:
I.

Introduction
On December 11, 2015, pro se plaintiff Erwin Jackson (“Plaintiff”), a prisoner at the

Elmira Correctional Facility, filed a complaint against the County of Nassau, the Honorable Meryl
J. Berkowitz, and Nassau County Assistant District Attorney Ames C. Grewert, raising allegations
of due process violations in connection with post-conviction motions that Plaintiff filed in state
court. (See Compl. (Dkt. 1)).1 On the same day, Plaintiff also filed a motion to proceed in forma
pauperis. (See Mot. (Dkt. 2)). Pursuant to the Prison Litigation Reform Act (“PLRA”), 28
U.S.C. § 1915(g), his motion to proceed in forma pauperis is denied. Accordingly, Plaintiff must
pay the three hundred and fifty dollar ($350.00) filing fee within fourteen (14) days of the date of
this Order or the action will be dismissed.

1 Plaintiff also asserts that the defendants violated his First Amendment rights (see Compl. (Dkt. 1) at ¶ 1), but
Plaintiff’s claims sound in procedural due process, if anything, not First Amendment.

1

II.

Discussion
28 U.S.C. § 1915(g)2 of the PLRA prohibits a prisoner from proceeding in forma pauperis

in federal court if he has previously filed three or more actions or appeals that were dismissed
because they were frivolous, malicious, or failed to state a claim upon which relief could be
granted, unless the prisoner plausibly alleges that he will imminently suffer serious injury. See 28
U.S.C. § 1915(g). Plaintiff has previously filed at least four (4) federal court actions challenging
the existence and/or conditions of his imprisonment that were each dismissed for failure to state a
claim upon which relief could be granted,3 and he does not allege that he is in imminent danger of
serious injury. (See Compl. (Dkt. 1), passim). Therefore, Plaintiff is barred from proceeding in
forma pauperis under the PLRA. See, e.g., Harris v. City of New York, 607 F.3d 18, 24 (2d Cir.
2010) (affirming dismissal under PLRA’s “three strikes” rule); Palmer v. New York State Dep’t of
Corrections, 342 Fed. Appx. 654, 656 (2d Cir. 2009) (same).
III.

Conclusion
Plaintiff’s application to proceed in forma pauperis is DENIED. Plaintiff is directed to

pay the three hundred and fifty dollar ($350.00) filing fee within fourteen (14) days of the date of
this Order, or the Court will dismiss this action without further notice.
The Court also 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
2 28 U.S.C. § 1915(g) provides in full: “In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding 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.”
3 See Jackson v. Fischer, 09-cv-00294 (N.D.N.Y. Mar. 17, 2009) (order dismissing in forma pauperis complaint for
failure to state a claim upon which relief could be granted) [Dkt. 5]; Jackson v. Cnty. of Nassau, 06-cv-00040
(E.D.N.Y. Aug. 7, 2010) (same) [Dkt. 83]; Jackson v. Mishler, 01-CV-8155 (E.D.N.Y. Jan. 29, 2002) (same) [Dkt. 5];
Jackson v. Walsh, 00-CV-2290 (E.D.N.Y. Apr. 19, 2002) (same) [Dkt. 41].

2

of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21
(1962); Umoja v. Griffin, Case No. 11-cv-0736, 2014 WL 2453620, at *22 (E.D.N.Y. May 29,
2014).
SO ORDERED.

s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge

Dated: March 18, 2016
Central Islip, New York

3