Lettieri v. Department of Justice et al

Filing 10

ORDER re 8 MOTION for Leave to Proceed in forma pauperis filed by David C. Lettieri is DENIED, and it is ORDERED that 9 Letter Motion requesting discovery order filed by David C. Lettieri is DENIED without prejudice. REPORT AND RECOMMENDATIO NS that if Plaintiff wishes to proceed with this action, he be required to pay the $405.00 filing and administrative fee in full within 30 days from the filing of this Order. Objections to R&R due by 6/20/2024, Case Review Deadline 6/24/2024), Motions terminated: 8 MOTION for Leave to Proceed in forma pauperis filed by David C. Lettieri and 9 Letter Motion requesting discovery order filed by David C. Lettieri. IT IS SO ORDERED.. Signed by Magistrate Judge Miroslav Lovric on 6/5/2024. (Copy served via regular mail to Pro Se Plaintiff on 6/5/2024.)(sbb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
DAVID C. LETTIERI,
Plaintiff,
3:24-CV-0475
(DNH/ML)

v.
DEP’T OF JUSTICE; and FEDERAL
BUREAU OF INVESTIGATION,
Defendants.
_____________________________________________
APPEARANCES:

OF COUNSEL:

DAVID C. LETTIERI
Plaintiff, Pro Se
Niagara County Jail
5526 Niagara Street Ex.
Lockport, New York 149094
MIROSLAV LOVRIC, United States Magistrate Judge
ORDER and REPORT-RECOMMENDATION
I.

BACKGROUND
A.

Procedural History

Plaintiff David C. Lettieri (“Plaintiff”) commenced this civil rights action pro se on April 4,
2024, on a form complaint alleging that his rights were violated by Defendants Department of
Justice and Federal Bureau of Investigation (collectively “Defendants”). (Dkt. No. 1.) Plaintiff
did not pay the filing fee for this action and sought leave to proceed in forma pauperis (“IFP”).
(Dkt. Nos. 2, 3.) On April 24, 2024, the undersigned denied Plaintiff’s IFP application as

incomplete. (Dkt. No. 7.) On May 16, 2024, Plaintiff filed an amended application to proceed
IFP (Dkt. No. 8) and Letter Request/Motion seeking discovery (Dkt. No. 9).
B.

Complaint

Construed as liberally1 as possible, Plaintiff’s Complaint appears to allege that in
November 2020, Defendants violated his rights. (See generally Dkt. No. 1.) The Complaint
refers to a notarized statement (Dkt. No. 1 at 4-5) but none is attached to the Complaint.
Based on these factual allegations, Plaintiff appears to assert the following four claims:
(1) a claim that his due process rights were violated; (2) a claim of excessive force; (3) a claim
that Plaintiff did not receive a fair trial; and (4) a claim of unlawful seizure. (Id. at 3.) As relief,
Plaintiff seeks $1,000,000 in damages and to get his phone back. (Id. at 5.)
Plaintiff seeks leave to proceed IFP. (Dkt. No. 8.)
II.

PLAINTIFF’S AMENDED APPLICATION TO PROCEED IFP
Where a plaintiff seeks leave to proceed IFP, the Court must determine whether the

plaintiff has demonstrated sufficient economic need to proceed without prepaying, in full, the
Court's filing fee of four hundred and five dollars ($405.00). The Court must also determine
whether the “three strikes” provision of 28 U.S.C. § 1915(g) (“Section 1915(g)”) bars the
plaintiff from proceeding IFP and without prepayment of the filing fee. More specifically,
Section 1915(g) provides as follows:
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
1

The court must interpret pro se complaints to raise the strongest arguments they suggest.
Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994)).
2

claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.
28 U.S.C. § 1915(g). If the plaintiff is indigent and not barred by Section 1915(g), the Court
must consider the sufficiency of the claims stated in the complaint in accordance with 28 U.S.C.
§ 1915(e) and 28 U.S.C. § 1915A.
In this case, Plaintiff has failed to demonstrate economic need through his IFP
application, because he fails to provide the value of (1) the money he has in cash or in a checking
or savings account (Dkt. No. 8 at ¶ 4), and (2) the three real estate properties he owns (id. at ¶ 5).
Moreover, Plaintiff’s amended IFP application is the short form IFP application, which does not
contain the certificate portion to be completed by an appropriate official at Plaintiff’s institution
of incarceration pursuant to N.D.N.Y. L.R. 5.1.4(b)(1)(A). (Compare Dkt. No. 2, with Dkt. No.
8.) Thus, the amended IFP application does not comply with 28 U.S.C. § 1915(a)(2), which
requires that an IFP request be accompanied by “a certified copy of the trust fund account
statement (or institutional equivalent) for the prisoner for the 6-month period immediately
preceding the filing of the complaint.”2 28 U.S.C. § 1915(a)(2).
As a result, the undersigned could deny Plaintiff’s amended IFP application without
prejudice on these bases alone. However, as will be discussed below, because Plaintiff has three
strikes and his Complaint does not allege that he was in imminent danger at the time of filing, his
second amended IFP application is denied with prejudice.

The amended IFP application explicitly directs that if Plaintiff has “an account in the
institution” in which he is incarcerated, he must attach to his IFP application “a statement
certified by the appropriate institutional officer showing all receipts, expenditures, and balances
during the last six months for any institutional account in [his] name.” (Dkt. No. 8 at ¶ 1.)
2

3

Plaintiff has filed the inmate authorization form required in the Northern District of New
York. (Dkt. No. 3.) Thus, the Court must determine whether the “three strikes” rule of Section
1915(g) bars Plaintiff from proceeding with this action IFP.
A.

Determination of “Strikes”

Plaintiff is a frequent litigator, having commenced at least thirteen pro se actions in the
Northern District of New York since August 30, 2023. In re Lettieri, 24-PF-0001, 2024 WL
1655374, at *2, n.1 (N.D.N.Y. Apr. 17, 2024) (Sannes, C.J.).
Upon review of those actions and actions filed by Plaintiff in other districts, and
consistent with the determinations reached by Chief District Judge Brenda K. Sannes in Lettieri
v. Vestal Police, 24-CV-0198, 2024, 1616330, at *2 (N.D.N.Y. Apr. 15, 2024) (Sannes, C.J.), the
Honorable Hector Gonzalez in Lettieri v. Broome Cnty. Humane Soc’y, 20-CV-7777, 23-CV7830, 2023 WL 7017081, at *2 (E.D.N.Y. Oct. 25, 2023), denying recons., 2023 WL 8003478,
(E.D.N.Y. Nov. 17, 2023), and the Honorable Lawrence J. Vilardo in Lettieri v. Broome Cnty.
Humane Soc’y, 23-CV-1223, 2023 WL 9066861, at *2 (W.D.N.Y. Dec. 4, 2023), and Lettieri v.
Auricchio, 23-CV-1121, 2023 WL 9066873, at *2 (W.D.N.Y. Dec. 4, 2023), this Court finds
that, as of the date that Plaintiff commenced this action, he had acquired at least three “strikes.”3
As a result, Plaintiff's IFP Application must be denied unless it appears that the “imminent
danger” exception to the “three strikes” rule set forth in Section 1915(g) is applicable to this
action.4
3

The actions in which Plaintiff acquired strikes are as follows: (1) Lettieri v. W. Dist. of
N.Y., 23-CV-7508, Dkt. No. 28 (March 13, 2024); (2) Lettieri v. W. Dist. of N.Y., 23-CV-0770
(W.D.N.Y. Sept. 11, 2023), Dkt. No. 7; (3) Lettieri v. U.S. Dep’t of Justice, 23-CV-0866
(W.D.N.Y. Sept. 19, 2023), Dkt. No. 3; and (4) Lettieri v. Vilardo, 23-CV-6498 (W.D.N.Y. Sept.
21, 2023), Dkt. No. 3.
4

Before the Complaint in this action was filed, Plaintiff had been informed several times
that he had accumulated three strikes. See, e.g., Lettieri v. Bonanno, 23-CV-6515, 2023 WL
4

B.

Applicability of the “Imminent Danger” Exception

The “imminent danger” exception protects a prison inmate exposed to potential serious
physical injury from the consequences of his earlier mistakes in filing frivolous litigation.
Generally speaking, the allegations relevant to this inquiry “are those in which [plaintiff]
describes physical injury, threats of violence, and deprivation of medical treatment.” Chavis v.
Chappius, 618 F.3d 162, 165 (2d Cir. 2010). The Second Circuit has described the nature of the
Court’s inquiry regarding imminent danger as follows: “although the feared physical injury must
be serious, we should not make an overly detailed inquiry into whether the allegations qualify for
the exception, because § 1915(g) concerns only a threshold procedural question, while [s]eparate
PLRA provisions are directed at screening out meritless suits early on.” Chavis, 618 F.3d at
169-70 (quoting Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007)) (internal quotation
marks omitted).

9184676, at *1 n.4 (W.D.N.Y. Dec. 18, 2023) (“Following the filing of this action, this Court
found Plaintiff had garnered three strikes under 28 U.S.C. § 1915(g), and, therefore, could not
proceed IFP without showing that he is under “imminent danger of serious physical injury.”);
Lettieri v Bonanno, 23-CV-1081, 2023 WL 9421209, at *2 (W.D.N.Y. Dec. 4, 2023) (internal
citations omitted) (“The three strikes rule squarely applies here. In addition to this case,
[Plaintiff] has filed more than 50 actions in this Court in the past year. At least three of those
cases were dismissed because the defendants were immune from suit . . . . [Thus,] Lettieri has
accumulated three strikes under 28 U.S.C. § 1915(g).”); Lettieri v. Auricchio, 23-CV-1121, 2023
WL 9066873, at *2 (W.D.N.Y. Dec. 4, 2023) (same); Lettieri v. Broome Cnty. Humane Soc’y,
23-CV-1223, 2023 WL 9066861, at *2 (W.D.N.Y. Dec. 4, 2023) (same); Lettieri v. Broome
Cnty. Humane Soc’y, 23-CV-7777, 23-CV-7830, 2023 WL 8003478, at *1 (E.D.N.Y. Nov. 17,
2023) (“Plaintiff incorrectly argues that the prison mailbox rule means that each of these two
cases was deemed filed before he received the third dismissal relied upon by the Court to invoke
the three-strikes rule.”); Lettieri v. Broome Cnty. Humane Soc’y, 23-CV-7777, 23-CV-7830,
2023 WL 7017081, at *2 (E.D.N.Y. Oct. 25, 2023) (“Plaintiff falls within this prohibition
because at least three of the cases that he has filed in the Western District on an in forma
pauperis basis were dismissed sua sponte for failure to state a claim.”). Notwithstanding this
information, Plaintiff falsely represented in the Complaint that he had not accumulated three
strikes before the commencement of this action. (Dkt. No. 1 at 8.)
5

“[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); see also Polanco v. Hopkins, 510 F.3d 152 (2d
Cir. 2007); Akassy v. Hardy, 887 F.3d 91, 96 (2d Cir. 2018). However, “allegations of past
violence can satisfy the imminent danger exception when, for example, the past harms are part of
an ongoing pattern of acts.” Carter v. New York State, 20-CV-5955, 2020 WL 4700902, at *1
(S.D.N.Y. Aug. 12, 2020) (citing Chavis, 618 F.3d at 170 (holding that “[a]n allegation of a
recent brutal beating, combined with three separate threatening incidents, some of which
involved officers who purportedly participated in that beating, is clearly the sort of ongoing
pattern of acts that satisfies the imminent danger exception.”)).
In addition, Ҥ 1915(g) allows a three-strikes litigant to proceed [IFP] only when there
exists an adequate nexus between the claims he seeks to pursue and the imminent danger he
alleges.” Pettus, 554 F.3d at 296. In deciding whether such a nexus exists, the Second Circuit
has instructed the courts to consider “(1) whether the imminent danger of serious physical injury
that a three-strikes litigant alleges is fairly traceable to unlawful conduct asserted in the
complaint, and (2) whether a favorable judicial outcome would redress that injury.” Id. at 29899.
In this case, the Complaint alleges that over three years before filing this action,
Defendants violated his civil rights. (Dkt. No. 1 at 5.) These allegations fail to plausibly suggest
that Plaintiff was “under imminent danger of serious physical injury” when he signed his
complaint on October 3, 2023. (Dkt. No. 1 at 11.) Therefore, Plaintiff is barred from proceeding
IFP under Section 1915.

6

To the extent that Plaintiff pays the filing fee this matter shall be returned to the
undersigned for a review of the Complaint pursuant to 28 U.S.C. § 1915A. Plaintiff’s Letter
Motion (Dkt. No. 9) is denied without prejudice to refiling upon payment of the filing fee.
ACCORDINGLY, it is
ORDERED that Plaintiff's amended IFP application (Dkt. No. 8) is DENIED; and it is
further
ORDERED that Plaintiff’s Letter Request/Motion (Dkt. No. 9) is DENIED without
prejudice; and it is further respectfully
RECOMMENDED that should Plaintiff wish to proceed with this action, he be required
to pay the $405.00 filing and administrative fees within thirty (30) days from the filing of an
Order by the assigned District Judge adopting this Order and Report-Recommendation. It is
recommended that should Plaintiff fail to pay the full filing and administrative fees within thirty
(30) days of the date of such an order, the case be dismissed without prejudice and without
further order of the Court; and it is further
ORDERED that the Clerk of the Court shall file a copy of this order and reportrecommendation on the docket of this case and serve a copy upon the parties in accordance with
the local rules.5

5

The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein
in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
7

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within
which to file written objections to the foregoing report.6 Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN
DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013);
Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.
Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
Dated: June __,
5 2024
Binghamton, New York

6

If you are proceeding pro se and served with this report, recommendation, and order by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date that the report, recommendation, and order was mailed to you to
serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
8

In re Lettieri, Slip Copy (2024)

2024 WL 1655374
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.

filing of repetitive and frivolous suits constitutes the type of
abuse for which an injunction forbidding further litigation
may be an appropriate sanction.”). The Second Circuit has
instructed that courts must consider the following factors in
deciding whether to impose a pre-filing injunction:

IN RE: David C. LETTIERI, Respondent.
3:24-PF-1 (BKS)
|
Signed April 17, 2024
Attorneys and Law Firms
David C. Lettieri, Lockport, NY, Pro Se.

ORDER TO SHOW CAUSE
Brenda K. Sannes, Chief United States District Judge:
*1 Respondent David C. Lettieri has filed thirteen pro
se actions in the Northern District of New York since
August 30, 2023. 1 Respondent's filings are not limited
to the Northern District of New York; a review of the
Public Access to Court Electronic Records (“PACER”)
database shows that Plaintiff is a prolific filer and has
filed well over 70 cases in federal district courts around
the country, “almost all of which have been found to be
frivolous or without merit.” Order Dismissing Complaint,
Lettieri v. Allegany Cnty. Jail, No. 24-cv-21114 (S.D. Fla.
Mar. 26, 2024), ECF No. 4, at 2. On January 26, 2024,
United States Magistrate Judge Miroslav Lovric issued an
Order and Report-Recommendation observing that “Plaintiff
has displayed a perpetual abuse of the judicial process
in this District and others,” and recommending that the
undersigned consider whether a Pre-Filing Order should be
issued prohibiting Lettieri “from making any future pro se
filings in this District without prior leave of the Chief Judge.”
Order & Report-Recommendation, Lettieri VII, No. 24-cv-74
(N.D.N.Y. Jan 26, 2024), ECF No. 4, at 9–13.
It is well settled that “[a] district court may, in its discretion,
impose sanctions against litigants who abuse the judicial
process.” Shafii v. British Airways, PLC, 83 F.3d 566, 571 (2d
Cir. 1996). Where a litigant persists in the filing of vexatious
and frivolous suits, it may be appropriate to place certain
limitations on the litigant's future access to the courts. See
Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005) (citing
Iwachiw v. New York State Dep't of Motor Vehicles, 396 F.3d
525, 528 (2d Cir. 2005)); see also Shafii, 83 F.3d at 571 (“The

*2 (1) the litigant's history of
litigation and in particular whether
it entailed vexatious, harassing or
duplicative lawsuits; (2) the litigant's
motive in pursuing the litigation, e.g.,
does the litigant have an objective
good faith expectation of prevailing?;
(3) whether the litigant is represented
by counsel; (4) whether the litigant
has caused needless expense to other
parties or has posed an unnecessary
burden on the courts and their
personnel; and (5) whether other
sanctions would be adequate to protect
the courts and other parties.

Eliahu v. Jewish Agency for Israel, 919 F.3d 709, 714 (2d Cir.
2019) (quoting Iwachiw, 396 F.3d at 528).
A review of CM/ECF shows that Respondent has filed
thirteen pro se actions in the Northern District of New York
since August 30, 2023. See supra note 1. All thirteen cases
allege violation of constitutional rights under 42 U.S.C. §
1983 and allege, inter alia, unlawful search and seizure, due
process violations, excessive force, and unlawful arrest. Of
the thirteen cases, five concern events arising on November 5,
2020, Lettieri I, 23-cv-1099; Lettieri VIII, 24-cv-102; Lettieri
XI, 24-cv-434; Lettieri XII, 24-cv-474; and Lettieri XIII, 24cv-475. Respondent sues, among others, the FBI, Department
of Justice, the New York State Police, Broome County,
Broome County Sheriffs, Vestal Police Department, City of
Binghamton, Broome County Human Society, and a number
of individual defendants. In addition to seeking to vindicate
his individual constitutional rights, Respondent's complaints
advance claims stemming from the allegedly illegal seizure
of his (or his girlfriend's) dog. See Lettieri V, 23-cv-1547;
Lettieri VIII, 24-cv-102; Lettieri XI, 24-cv-434.
Two of Respondent's cases were transferred to the Western
District of New York, see Lettieri II, 23-cv-1136; Lettieri III,
23-cv-1272, and Lettieri XI, 24-cv-434, was administratively

© 2024 Thomson Reuters. No claim to original U.S. Government Works.

1

In re Lettieri, Slip Copy (2024)

closed for failure to pay the filing fee or file a proper
motion for in forma pauperis status. Magistrate Judge Lovric
has recommended that Lettieri I, 23-cv-1099, be dismissed,
without leave to amend, as barred by the doctrine of judicial
immunity, and Lettieri I, 23-cv-1099, Lettieri IV, 23-cv-1421,
Lettieri V, 23-cv-1547, Lettieri VI, 23-cv-1597, Lettieri VII,
24-cv-74, Lettieri VIII, 24-cv-102, Lettieri IX, 24-cv-156,
Lettieri X, 24-cv-198, Lettieri XI, 24-cv-434, are subject to, or
have been recommended for, dismissal on the ground that as
a litigant with three strikes, 2 Respondent must pay the filing
fee to proceed with the action. Only Lettieri, XII, 24-cv-474
and Lettieri XIII, 24-cv-475, which are awaiting initial review,
are actively pending.
As to the first and second factors, the Court finds that
Respondent's litigation history in the Northern District
involves the filing vexatious and duplicative lawsuits and
that such filings were not in good faith. Eliahu, 919 F.3d
at 714. Respondent has filed thirteen cases against various
defendants, some of whom are named multiple times. See,
e.g., Lettieri III, 23-cv-1272 (naming the DOJ and FBI);
Lettieri XIII, 24-cv-475 (naming the DOJ and FBI); see
also Lettieri I, 23-cv-1099 (naming the FBI). At least five
of the actions concern the same date. See Lettieri I, 23cv-1099 (alleging events at issue occurred on November
5, 2020); Lettieri VIII, 24-cv-102; Lettieri XI, 24-cv-434
(same); Lettieri XII, 24-cv-474 (same); Lettieri XIII, 24cv-475 (same). Further, some contain almost no factual
allegations, see, e.g., Lettieri IV, 23-cv-1421 (alleging “refuse
to give a face shield to protect from Covid-19”); Lettieri VI,
23-cv-1597 (alleging “tampered with a witness that was on
the defendants witness list”); Lettieri IX, 23-cv-156 (alleging
“filed a false charge in order to try to take property that was
stolen”). The Court therefore has no difficulty concluding that
Plaintiff's conduct was vexatious and duplicative, and was not
in good faith.
*3 The third factor, whether the respondent was represented
by counsel, Eliahu, 919 F.3d at 714, weighs against the
issuance of a Pre-Filing Order, as Respondent has filed all
his actions pro se. All but two actions have been transferred,
dismissed, or recommended for dismissal for failure to pay
the filing fee; no Court in the Northern District has reached
the merits of any of Respondent's actions. The fourth factor,
whether the respondent has imposed needless expense or
burden on the court or others, id., weighs in favor of a
Pre-Filing Order. In filing the present action Respondent
imposed needless expense and burden on the Court, including
on the seven United States District Court Judges and one

Magistrate Judge who were required to address and dispose
of his numerous complaints. The Court notes that none of
Respondent's complaints appear to have been served, no
defendant has appeared in any of Respondent's actions, and
no defendant has been subjected to expenses or any burden
in connection with Respondent's conduct. However, given
the burden that has been imposed on the Court, this factor
weighs in favor of the issuance of a Pre-Filing Order. The
final factor the Court must consider in determining whether to
issue a Pre-Filing Order is whether other sanctions would be
adequate to protect the court and other parties. Id. Here, the
Court concludes that monetary sanctions would be ineffectual
as Respondent, who has applied for IFP status and is presently
incarcerated, appears to have no ability to satisfy a monetary
sanction. Moreover, Respondent's accumulation of threestrikes and consequent loss of the ability to proceed IFP under
most circumstances has not deterred Respondent from filing.
Respondent's motivation for filing vexatious and duplicative
litigation is unclear. Although Respondent has acted without
the benefit of an attorney's involvement, given that
Respondent's actions have been devoid of any merit and often
duplicative, the Court concludes that it cannot be said that he
was acting in good faith. As to expense and burden, while
Respondent's litigation has not resulted in needless expense
to his litigation adversaries (all cases have been dismissed
prior to service and no defendant has appeared), Respondent's
litigation has placed an unnecessary burden on the courts.
Respondent has filed thirteen actions in less than one year,
taxing the dockets of seven district judges and one magistrate
judge. Respondent's continued filing of cases suggests that
that dismissal alone would be an insufficient remedy and
that no sanction short of an injunction would be sufficient to
protect the court and other parties.
Therefore, after carefully reviewing the record, the Court
concludes that, unless Respondent shows cause otherwise,
Respondent shall be enjoined from filing any future pleadings
or documents of any kind (including motions) in this District
pro se without prior permission of the Chief Judge or his
or her designee (except pleadings or documents in a case
that is open at the time of the issuance of the Court's PreFiling Order, until that case is closed). Notwithstanding the
overwhelming support for a pre-filing injunction, fairness
dictates that Respondent be given notice and an opportunity
to be heard. See Iwachiw, 396 F.3d at 529. As a result,
Respondent shall have fourteen (14) days from the date of
this Order to show cause, in writing, why he should not be
enjoined from filing any future pleadings or documents of any

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2

In re Lettieri, Slip Copy (2024)

kind (including motions) in this District pro se without prior
permission of the Chief Judge or his or her designee.
ACCORDINGLY, it is
ORDERED that Respondent David C. Lettieri shall, within
FOURTEEN (14) DAYS of the date of this Order, show
cause, in writing, why he should not be enjoined from filing
any future pleadings or documents of any kind (including
motions) in the Northern District of New York pro se without
prior permission of the Chief Judge or his or her designee
(except pleadings or documents in a case that is open at the
time of the issuance of the Court's Pre-Filing Order, until that
case is closed); 3 and it is further

*4 ORDERED that, if Respondent does not fully comply
with this Order, the Court will issue a subsequent order,
without further explanation, permanently so enjoining
Respondent; and it is further
ORDERED that the Clerk shall mail a copy of this Order to
Show Cause to Respondent by regular and certified mail.
IT IS SO ORDERED.
All Citations
Slip Copy, 2024 WL 1655374

Footnotes
1

Lettieri v. Fed. Bureau of Investigation (Lettieri I), No. 23-cv-1099 (GTS/ML) (N.D.N.Y. filed Aug. 20, 2023);
Lettieri v. Ne. Ohio Corr. Ctr. (Lettieri II), No. 23-cv-1136 (MAD/ML) (N.D.N.Y. filed Sep. 5, 2023); Lettieri
v. Dep't of Justice (Lettieri III), No. 23-cv-1272 (BKS/ML) (N.D.N.Y. filed Oct. 12, 2023); Lettieri v. Garver
(Lettieri IV), No. 23-cv-1421 (DNH/MJK) (N.D.N.Y. filed Nov. 15, 2023); Lettieri v. New York State Police
(Lettieri V), No. 23-cv-1547 (TJM/ML) (N.D.N.Y. filed Dec. 11, 2023); Lettieri v. Brigueal (Lettieri VI), No. 23cv-1597 (AMN/ML) (N.D.N.Y. filed Dec. 18, 2023); Lettieri v. City of Binghamton (Lettieri VII), No. 24-cv-74
(BKS/ML) (N.D.N.Y. filed Jan. 17, 2024); Lettieri v. Gaska (Lettieri VIII), No. 24-cv-102 (GTS/ML) (N.D.N.Y.
filed Jan. 22, 2024); Lettieri v. Broome Cnty. Sheriffs (Lettieri IX), No. 24-cv-156 (LEK/ML) (N.D.N.Y. filed
Jan. 31, 2024); Lettieri v. Vestal Police (Lettieri X), No. 24-cv-198 (BKS/ML) (N.D.N.Y. Feb. 9, 2024); Lettieri
v. Matson (Lettieri XI), No. 24-cv-434 (GTS/ML) (N.D.N.Y. Mar. 27, 2024); Lettieri v. Schemit (Lettieri XII), No.
24-cv-474 (GTS/ML) (N.D.N.Y. Apr. 4, 2024); Lettieri v. Dep't of Justice (Lettieri XIII), No. 24-cv-475 (DNH/
ML) (N.D.N.Y. Apr. 4, 2024).

2

The “three strikes” provision of 28 U.S.C. § 1915(g) (“Section 1915(g)”) bars Respondent from proceeding
IFP and without prepayment of the filing fee as he is a prisoner and 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).

3

This injunction would apply to, among other things, continued filings by Respondent as a pro se plaintiff in
any action filed by him in state court removed to this Court or filed by him in another U.S. District Court
and transferred to this Court. See Sassower v. Starr, 338 B.R. 212, 218-19 & n.1 (S.D.N.Y. Bankr. 2006)
(recognizing validity of pre-filing injunction expressly applying to actions removed from state courts to the
Southern District of New York); Jenkins v. Kerry, 928 F. Supp. 2d 122, 126 (D. D.C. 2013) (noting that
Southern District of Florida would apply its pre-filing injunction to case that was transferred there from the
District for the District of Columbia); Petrols v. Boos, No. 10-cv-0777, 2012 WL 1193982, at *1, n.3, 2012
U.S. Dist. LEXIS 49785 (N.D. W. Va. Apr. 10, 2012) (“This pre-filing injunction does not preclude the plaintiff
from filing an action in state court, but it does apply to cases filed in state court that are removed to this
Court.”); Kissi v. Pramco, II, LLC, No. 09-cv-0267, 2009 WL 8636986, at *1, 2009 U.S. Dist. LEXIS 61425
(D. Md. Feb. 12, 2009) (applying District of Maryland's pre-filing injunction to case that had been transferred

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3

In re Lettieri, Slip Copy (2024)

from the District of Delaware). However, this injunction would not prohibit Respondent from filing a petition
for relief pursuant to 28 U.S.C. § 2254.

End of Document

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4

Lettieri v. Broome County Humane Society, Slip Copy (2023)

2023 WL 7017081
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
David Carmine LETTIERI, Plaintiff,
v.
The BROOME COUNTY HUMANE
SOCIETY, Department of Justice, and
Federal Bureau of Investigation, Defendants.
David Carmine Lettieri, Plaintiff,
v.
James Quinn Auricchio, Michael J. Roemer, Lawrence
Joseph Vilardo, and Paul E. Bonanno, Defendants.
23-CV-07777 (HG) (MMH), 23-CV-07830 (HG) (MMH)
|
Signed October 25, 2023
Attorneys and Law Firms
David Carmine Lettieri, Lockport, NY, Pro Se.

MEMORANDUM & ORDER
HECTOR GONZALEZ, United States District Judge:
*1 Plaintiff was convicted at trial earlier this year, in the
U.S. District Court for the Western District of New York,
for enticement of a minor in violation of 18 U.S.C. §
2422(b) and is currently detained in a county jail located in
that district while awaiting sentencing. See United States v.
Lettieri, No. 21-cr-20, 2023 WL 6531514, at *1 (W.D.N.Y.
Oct. 6, 2023) (denying plaintiff's post-trial motions for
judgment of acquittal or for a new trial). Based on the
Court's review of publicly available dockets in the Western
District, Plaintiff has filed nearly 50 civil cases, many of
which he has purportedly brought on an in forma pauperis
basis, seeking permission to commence those cases without
prepaying the district's filing fee. In response, the Western
District has commenced a miscellaneous proceeding in which
it has ordered Plaintiff to show cause why he should not be
prohibited from filing any new actions without paying the
applicable filing fees or submitting proper requests for in
forma pauperis status. See In re David C. Lettieri, No. 23mc-32 (W.D.N.Y. filed Sept. 5, 2023) (ECF No. 1).
Plaintiff has also filed two civil complaints in this District,
each of which is accompanied by a request to proceed

in forma pauperis. In the first of these cases, Plaintiff
purports to be acting as the administrator of the estate of
an apparently deceased relative and alleges that the Broome
County Humane Society unlawfully entered his relative's
home and took his relative's dog. Lettieri v. The Broome
County Humane Society, No. 23-cv-7777 (E.D.N.Y. filed
Oct. 10, 2023) (ECF No. 1). Although Plaintiff's complaint
in that case names as Defendants the U.S. Department of
Justice and the Federal Bureau of Investigation, his complaint
makes no attempt to explain what role any employee of
those agencies—or any other federal employee—played in
the events giving rise to Plaintiff's purported claim against
the humane society. Id. In the second case, Plaintiff asserts
claims for damages against the district judge and magistrate
judge who presided over his criminal proceedings in the
Western District, along with an Assistant U.S. Attorney who
participated in the case and one of Plaintiff's own defense
attorneys. Lettieri v. Quinn, No. 23-cv-7830 (E.D.N.Y. filed
Oct. 16, 2023) (ECF No. 1). The basis for Plaintiff's damages
claim is unclear, but he appears to assert that the facts alleged
in the indictment against him were sufficiently different from
the facts presented at trial, such that the Court should infer that
the Government committed some kind of misconduct before
the grand jury. Id.
The statute that authorizes plaintiffs to receive in forma
pauperis status also contains a prohibition, commonly known
as the “three strikes rule,” that provides:

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 physical injury.

*2 28 U.S.C. § 1915(g). Dismissing the complaint is the
proper remedy when a plaintiff seeks in forma pauperis status
but is ineligible to receive such status under 28 U.S.C. §
1915(g). See Griffin v. Carnes, 72 F.4th 16, 21 (2d Cir. 2023)

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1

Lettieri v. Broome County Humane Society, Slip Copy (2023)

(“The district court correctly concluded that [the plaintiff]
was barred by the [Prison Litigation Reform Act's] three
strikes provision from proceeding [in forma pauperis], and,
therefore, properly dismissed his complaint.”). 1 A district
court need not hold an incarcerated plaintiff's lawsuit “in
abeyance until he is able to pay the filing fees,” so long as
the dismissal is “without prejudice to [the plaintiff's] right
to file new actions with payment of the filing fees.” Akassy
v. Hardy, 887 F.3d 91, 98 (2d Cir. 2018) (holding that “the
district court plainly ha[d] the authority to dismiss an action
filed in contravention” of 28 U.S.C. § 1915(g) and did not
“abuse [its] discretion” by dismissing plaintiff's case without
prejudice).
Plaintiff falls within this prohibition because at least three
of the cases that he has filed in the Western District on
an in forma pauperis basis were dismissed sua sponte for
failure to state a claim before Plaintiff commenced either
of his two cases in this District. See Lettieri v. W. Dist. of
N.Y., No. 23-cv-770 (W.D.N.Y. Sept. 11, 2023) (ECF No. 7)
(granting plaintiff in forma pauperis status but dismissing
complaint based on alleged failure by clerk's office employees
to mail case filings pursuant to “28 U.S.C. §§ 1915(e)(2)
(B) and 1915A on the basis of immunity”); Lettieri v. U.S.
Dep't of Justice, No. 23-cv-866 (W.D.N.Y. Sept. 19, 2023)
(ECF No. 3) (granting plaintiff in forma pauperis status
but dismissing complaint against Assistant U.S. Attorney
based on alleged violations of Federal Rules of Evidence
at criminal trial “under 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b)”); Lettieri v. Vilardo, No. 23-cv-6498 (W.D.N.Y.
Sept. 21, 2023) (ECF No. 3) (granting plaintiff in forma
pauperis status but dismissing complaint because judge who
presided over plaintiff's criminal trial was immune from
civil suit based on his decisions related to the parties’
proposed jury instructions). Neither Plaintiff's complaints nor
his applications for in forma pauperis status make any attempt
to allege that he is in imminent danger of serious physical
injury that would override the prohibition in 28 U.S.C. §
1915(g).
Dismissing Plaintiff's claims pursuant to the three-strikes rule
in 28 U.S.C. § 1915(g) is procedurally proper even though
Plaintiff's in forma pauperis applications are incomplete. The
in forma pauperis statute only exempts incarcerated plaintiffs
from prepaying the fee to commence a case and authorizes
courts to collect the fee over time from a plaintiff's prison
account even if a court grants in forma pauperis status. See
28 U.S.C. § 1915(b). To facilitate this collection process, the
Second Circuit has required incarcerated plaintiffs seeking

in forma pauperis status to file a signed form authorizing
such collection “before making any assessment of whether
an appeal should be dismissed as frivolous, pursuant to 28
U.S.C. § 1915(e)(2)(B)(i).” Leonard v. Lacy, 88 F.3d 181,
182 (2d Cir. 1996). Although Plaintiff has provided the Court
with information about the balance of his account maintained
by the facility where he is incarcerated, he has not provided
the form authorizing the Court to collect money from that
account. However, even though Plaintiff's failure to provide
the authorization form arguably precludes the Court from
screening the merits of his claims, pursuant to 28 U.S.C.
§ 1915(e), it does not preclude the Court from dismissing
Plaintiff's claims without prejudice pursuant to 28 U.S.C. §
1915(g). Such a dismissal denies Plaintiff in forma pauperis
status without assessing the merits of his claims, requires
him to pay the filing fee upfront, and does not trigger the
process by which the Court may collect the filing fee in
installments from Plaintiff's prison account. See Meyers v.
Birdsong, ––– F.4th ––––, 2023 WL 6614357, at *3 (9th Cir.
2023) (holding that Ҥ 1915(b) neither permits nor requires
the collection of fees” from a prisoner who seeks in forma
pauperis status but whose request is denied pursuant to 28
U.S.C. § 1915(g)); Smith v. Dist. of Columbia, 182 F.3d 25,
29–30 (D.C. Cir. 1999) (holding that prisoner whose request
for in forma pauperis status was denied pursuant to 28 U.S.C.
§ 1915(g) was not required to pay filing fee out of prison
account).
*3 Finally, if Plaintiff attempts to re-file these cases, even
if he were to pay the necessary filing fees, any such cases
filed in this District would almost certainly be dismissed for
lack of venue. Generally, a case must be filed in a judicial
district where at least one defendant resides or in a judicial
district where the facts giving rise to the claim occurred.
See 28 U.S.C. § 1391(b). Accordingly, the appropriate venue
for Plaintiff's claims against the Defendants involved in his
criminal trial is the Western District of New York, and the
appropriate venue for his claims against the Broome County
Humane Society is the Northern District of New York. See 28
U.S.C. § 112(a) (defining the Northern District of New York
to include Broome County).

CONCLUSION
For the reasons set forth above, Plaintiff's applications to
proceed in forma pauperis are denied, and these cases are
dismissed without prejudice pursuant to 28 U.S.C. § 1915(g).
The Clerk of Court is respectfully directed to enter separate

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2

Lettieri v. Broome County Humane Society, Slip Copy (2023)

judgments, to close each case, and to mail copies of this
order and the forthcoming judgments to Plaintiff. The Clerk
of Court is further directed to mail a copy of this order to the
Clerk of Court for the Western District of New York.
If Plaintiff wishes to reassert his claims, he must file new
actions in a district court where venue is proper and pay the
$402.00 filing fee for each case to the Clerk of Court for that
district. 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 denies in forma pauperis status for the
purpose of any appeal. Coppedge v. United States, 369 U.S.
438, 444–45 (1962).
SO ORDERED.
All Citations
Slip Copy, 2023 WL 7017081

Footnotes
1

Unless noted, case law quotations in this order accept all alterations and omit internal quotation marks,
citations, and footnotes.

End of Document

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3

Lettieri v. Broome County Humane Society, Slip Copy (2023)

2023 WL 8003478
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
David Carmine LETTIERI, Plaintiff,
v.
The BROOME COUNTY HUMANE
SOCIETY, Department of Justice, and
Federal Bureau of Investigation, Defendants.
David Carmine Lettieri, Plaintiff,
v.
James Quinn Auricchio, Michael J. Roemer, Lawrence
Joseph Vilardo, and Paul E. Bonanno, Defendants.
23-CV-07777 (HG) (MMH), 23-CV-07830 (HG) (MMH)
|
Signed November 17, 2023
Attorneys and Law Firms
David Carmine Lettieri, Lockport, NY, Pro Se.

MEMORANDUM & ORDER
HECTOR GONZALEZ, United States District Judge:
*1 The Court previously dismissed without prejudice these
two lawsuits filed by Plaintiff, who is incarcerated in a county
jail in the Western District of New York while awaiting
sentencing for a conviction of enticement of a minor in
violation of 18 U.S.C. § 2422(b). See United States v. Lettieri,
No. 21-cr-20, 2023 WL 6531514, at *1 (W.D.N.Y. Oct. 6,
2023) (denying plaintiff's post-trial motions for judgment of
acquittal or for a new trial). The Court dismissed both of
these cases, pursuant to the three-strikes rule in 28 U.S.C. §
1915(g), because Plaintiff sought in forma pauperis status but
had already brought three lawsuits that had been dismissed
sua sponte as frivolous or for failure to state a claim.
Plaintiff has responded by filing, in both cases, motions for
reconsideration and, alternatively, notices of appeal.
The Court denies Plaintiff's motions for reconsideration.
Plaintiff incorrectly argues that the prison mailbox rule
means that each of these two cases was deemed filed before
he received the third dismissal relied upon by the Court
to invoke the three-strikes rule. But when Plaintiff signed
each of the complaints in these two cases, he dated them
September 25 and 26, respectively, so those are the earliest

dates that he could have delivered them to the authorities
where he is incarcerated to be mailed to the Court. The
latest of the dismissals in Plaintiff's prior cases relied upon
by the Court—i.e., his third strike—came in a decision
dated September 21, 2023, and a judgment was entered the
same day. Therefore, Plaintiff had accumulated three strikes
before he delivered either of his complaints in these two
cases to authorities at the facility where he is incarcerated.
Plaintiff's confidence that at least one of those decisions will
be overturned on appeal does not prevent him from having
accumulated three strikes. The Supreme Court has held that,
when counting whether a plaintiff has received three strikes,
“the courts must count [a] dismissal even though it remains
pending on appeal.” Coleman v. Tollefson, 575 U.S. 532, 534
(2015). Plaintiff has not cured his ineligibility for in forma
pauperis status by paying the Court's filing fee, so the Court's
dismissal of these two cases based on the three-strikes rule
still stands.
In each motion for reconsideration, Plaintiff attempts to argue
why venue would be proper in this District. For example, he
argues that the dog that the Broome County Humane Society
allegedly stole from a relative at a location in the Northern
District of New York previously lived most of its life in
Queens County. He also asserts that the judges and attorneys
involved with his criminal trial in the Western District of New
York were part of a wide-ranging “RICO conspiracy,” but he
provides no explanation as to how some aspect of that alleged
conspiracy supposedly took place in this District. The Court
does not find either of these two venue arguments to be valid.
But even if Plaintiff's attempts to demonstrate proper venue
in this District were successful, the Court still would not
reconsider the dismissal of Plaintiff's cases because showing
that venue is proper would not fix Plaintiff's ineligibility for
in forma pauperis status and his failure to pay the filing fees
to commence these two cases.

CONCLUSION
*2 For the reasons set forth above, Plaintiff's motions for
reconsideration are denied. Plaintiff's cases remain dismissed
without prejudice pursuant to 28 U.S.C. § 1915(g). The Clerk
of Court is respectfully directed to mail a copy of this order to
Plaintiff. Since Plaintiff filed notices of appeal concurrently
with his motions for reconsideration, those notices of appeal
become effective as of the date of this order denying the
motions. See Fed. R. App. P. 4(a)(4)(B)(i). However, Plaintiff
must either pay the $505.00 appellate filing fee for each

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1

Lettieri v. Broome County Humane Society, Slip Copy (2023)

case or obtain from the Second Circuit leave to appeal in
forma pauperis because the Court reiterates its prior holding
that any appeals from the Court's prior dismissal order, or
this order denying Plaintiff's motions for reconsideration,
would not be taken in good faith, and the Court therefore
denies in forma pauperis status for the purpose of any appeal.
Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
Alternatively, since the Court's dismissal of these cases is
without prejudice, Plaintiff may commence these lawsuits by
End of Document

filing new complaints in a district where venue would be
proper and by paying that district's filing fee.
SO ORDERED.
All Citations
Slip Copy, 2023 WL 8003478

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2

Lettieri v. Broome County Humane Society, Slip Copy (2023)

KeyCite Blue Flag – Appeal Notification
Appeal Filed by Lettieri v. The Broome County Humane Society, 2nd Cir.,
December 27, 2023

2023 WL 9066861
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
David C. LETTIERI, Plaintiff,
v.
The BROOME COUNTY HUMANE
SOCIETY, et al., 1 Defendant.
23-CV-1223-LJV
|
Signed December 4, 2023
Attorneys and Law Firms
David C. Lettieri, Youngstown, OH, Pro Se.

ORDER
LAWRENCE J. VILARDO, UNITED STATES DISTRICT
JUDGE
*1 The pro se plaintiff, David C. Lettieri, was a prisoner
incarcerated at the Niagara County Jail when he commenced
this action under 42 U.S.C. § 1983. Docket Item 1. He asserts
claims for “unlawful search and se[iz]ure,” “excessive force,”
and violation of his right to “[d]ue process.” Id. at 5.
Lettieri has moved to proceed in forma pauperis (“IFP”)
under 28 U.S.C. § 1915(a)-(b). Docket Item 2. For the
reasons that follow, Lettieri's motion to proceed IFP is denied.
Therefore, his complaint will be dismissed without prejudice
unless he pays the required $402.00 filing and administrative
fees. 2

LEGAL PRINCIPLES
Under 28 U.S.C. § 1915, as amended by the Prison Litigation
Reform Act of 1995, a prisoner who cannot afford to pay court
filing fees may proceed IFP and repay the fees according to
a “structured payment plan.” Chavis v. Chappius, 618 F.3d
162, 167 (2d Cir. 2010); 28 U.S.C. § 1915(a)-(b). But certain

prisoners—“so-called ‘frequent filers’ ”—are barred from
filing IFP. Chavis, 618 F.3d at 167. The statute defines such
litigants as those who have,

on 3 or more prior occasions, while
incarcerated or detained in any facility,
brought an action or appeal ... 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).
Courts refer to this provision as the “three strikes rule.”
Malik v. McGinnis, 293 F.3d 559, 560 (2d Cir. 2002). Claims
dismissed because of judicial or prosecutorial immunity are
“frivolous” and therefore “strikes” under 28 U.S.C. § 1915(g).
See Mills v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (judicial
immunity); Collazo v. Pagano, 656 F.3d 131, 134 (2d Cir.
2011) (prosecutorial immunity). Likewise, any dismissal for
failure to state a claim is a “strike” regardless of whether the
dismissal was with or without prejudice. See Lomax v. OrtizMarquez, 140 S. Ct. 1721, 1727 (2020).
A prisoner who has accumulated “three strikes” may proceed
IFP only if the complaint alleges that “the prisoner is under
imminent danger of serious physical injury.” 28 U.S.C. §
1915(g). A danger that has “dissipated by the time [the]
complaint is filed” is not “imminent.” Abreu v. Brown, 317 F.
Supp. 3d 702, 704 (W.D.N.Y. 2018) (quoting Chavis, 618 F.3d
at 169); see Malik, 293 F.3d at 563 (holding that “by using the
term ‘imminent,’ Congress indicated that it wanted to include
a safety valve for the ‘three strikes’ rule to prevent impending
harms, not those harms that had already occurred” (alteration
omitted)). So to be entitled to the exception, the prisoner
must adequately allege a danger that “exist[s] at the time the
complaint is filed.” Malik, 293 F.3d at 563.

DISCUSSION
*2 The three strikes rule squarely applies here. In addition
to this case, Lettieri has filed more than 50 actions in this
Court in the past year. See Lettieri v. Dep't of Just., Case.

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1

Lettieri v. Broome County Humane Society, Slip Copy (2023)

No. 23-cv-865, Docket Item 3, at 1 n.1 (W.D.N.Y. Oct.
19, 2023). At least three of those cases were dismissed
because the defendants were immune from suit. See Lettieri v.
Vilardo, Case No. 23-cv-6498, Docket Item 3 (W.D.N.Y. Sept.
21, 2023) (dismissing complaint due to judicial immunity);
Lettieri v. Western Dist. of New York, Case No. 23-cv-770,
Docket Item 7 (W.D.N.Y. Sept. 11, 2023) (same); Lettieri v.
Dep't of Just., Case No. 23-cv-866, Docket Item 3 (W.D.N.Y.
Sept. 19, 2023) (dismissing complaint due to prosecutorial
immunity). 3 Because the Second Circuit has held that
dismissals based on immunity count as “strikes,” see Mills,
645 F.3d at 177; Collazo, 656 F.3d at 134, Lettieri has
accumulated three strikes under 28 U.S.C. § 1915(g). 4

complaint could suggest that is the case. 5 Therefore, Lettieri
is barred from proceeding IFP under section 1915.

ORDER
Lettieri's motion to proceed IFP, Docket Item 2, therefore is
DENIED. If Lettieri wants to pursue this action, he must pay
the $402.00 filing and administrative fees. If Lettieri fails to
pay the full filing and administrative fees within 30 days of
the date of this order, this case will be dismissed without
prejudice without further order of the Court.
SO ORDERED.

For that reason, Lettieri cannot proceed IFP unless he faces
“imminent danger of serious physical injury.” 28 U.S.C. §
1915(g); see also Malik, 293 F.3d at 562. But no reading of the

All Citations
Slip Copy, 2023 WL 9066861

Footnotes
1

The complaint—and thus the official case caption—names “The Broome County Humane” instead of “The
Broome County Humane Society,” which is the entity that Lettieri seems to intend to sue. Docket Item 1
at 1, 5. The Clerk of the Court shall correct the caption accordingly. The other defendants named are the
Department of Justice and the Federal Bureau of Investigation (“FBI”). Id.

2

The fee to file a civil action is $350.00. Effective May 1, 2013, the Judicial Conference of the United
States added an administrative fee of $50.00 to the cost of filing a civil lawsuit in district court. See
September 2012 Report of the Proceedings of the Judicial Conference of the United States, available at
http://www.uscourts.gov/about-federal-courts/reports-proceedings-judicial-conference-us.
Effective December 1, 2020, this fee was increased to $52.00. See District Court Miscellaneous Fee
Schedule, https://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule.

3

Those three cases are not the only ones filed by Lettieri that have been dismissed for reasons that likely
are “strikes.” See, e.g., Lettieri v. Daniels, Case No. 23-cv-867, Docket Item 3 (W.D.N.Y. Oct. 16, 2023)
(dismissing complaint for failure to state a claim); Lettieri v. Auricchio, Case No. 23-cv-875, Docket Item 3
(W.D.N.Y. Oct. 11, 2023) (same); Lettieri v. Reynolds, Case No. 23-cv-925, Docket Item 4 (W.D.N.Y. Oct.
17, 2023) (same); Lettieri v. Dep't of Just., Case No. 23-cv-897, Docket Item 3 (W.D.N.Y. Oct. 10, 2023)
(dismissing complaint due to prosecutorial immunity). In fact, none of Lettieri's civil complaints that this Court
has screened under 28 U.S.C. §§ 1915(e)(2)(b) and 1915A have raised colorable claims. So Lettieri likely
has many more than three strikes. But three are enough. 28 U.S.C. § 1915(g).

4

Three courts, including this one, have found that Lettieri has garnered three strikes under section 1915. See
Lettieri v. Vilardo, Case No. 23-cv-6563 (W.D.N. Y Oct. 10, 2023) (Wolford, C.J.) (denying Lettieri's motion to
proceed IFP under the three strikes rule); Lettieri v. Broome Cnty. Humane Soc'y, 2023 WL 7017081, at *2-3

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2

Lettieri v. Broome County Humane Society, Slip Copy (2023)

(E.D.N.Y. Oct. 25, 2023) (Gonzalez, J.) (same); Lettieri v. Hockwater, Case No. 23-cv-1123, Docket Item 3
(W.D.N.Y. Nov. 13, 2023) (Vilardo, J.) (same).
5

Lettieri alleges that “[t]he FBI [l]et the Broome County Humane Society [break] [i]nto [his] [h]ouse and take
whatever they wanted,” including “a rat.” Docket Item 1 at 5. He then alleges that “they” are “trying to extort
money [f]or [i]llegal[ly] tak[ing] care of the [r]at,” although he does not clarify who “they” are. Id. Although it is
difficult to understand the complaint in places, no part of it suggests that Lettieri was in any “imminent danger
of serious physical injury” at the time of filing. 28 U.S.C. § 1915(g).

End of Document

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3

Lettieri v. Auricchio, Slip Copy (2023)

KeyCite Blue Flag – Appeal Notification
Appeal Filed by Lettieri v. Auricchio, 2nd Cir., December 27, 2023

2023 WL 9066873
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
David C. LETTIERI, Plaintiff,
v.
James Quinn AURICCHIO, 1 Defendant.
23-CV-1121-LJV
|
Signed December 4, 2023
Attorneys and Law Firms
David C. Lettieri, Lockport, NY, Pro Se.

ORDER
LAWRENCE J. VILARDO, UNITED STATES DISTRICT
JUDGE
*1 The pro se plaintiff, David C. Lettieri, was a prisoner
incarcerated at the Niagara County Jail when he commenced
this action under 42 U.S.C. § 1983. Docket Item 1. He alleges
that his former defense attorney, James Quinn Auricchio,
violated his right to due process and provided ineffective
assistance of counsel. 2 Docket Item 1 at 5.
Lettieri has moved to proceed in forma pauperis (“IFP”)
under 28 U.S.C. § 1915(a)-(b). Docket Item 2. For the
reasons that follow, Lettieri's motion to proceed IFP is denied.
Therefore, his complaint will be dismissed without prejudice
unless he pays the required $402.00 filing and administrative
fees. 3

filing IFP. Chavis, 618 F.3d at 167. The statute defines such
litigants as those who have,

on 3 or more prior occasions, while
incarcerated or detained in any facility,
brought an action or appeal ... 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).
Courts refer to this provision as the “three strikes rule.”
Malik v. McGinnis, 293 F.3d 559, 560 (2d Cir. 2002). Claims
dismissed because of judicial or prosecutorial immunity are
“frivolous” and therefore “strikes” under 28 U.S.C. § 1915(g).
See Mills v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (judicial
immunity); Collazo v. Pagano, 656 F.3d 131, 134 (2d Cir.
2011) (prosecutorial immunity). Likewise, any dismissal for
failure to state a claim is a “strike” regardless of whether the
dismissal was with or without prejudice. See Lomax v. OrtizMarquez, 140 S. Ct. 1721, 1727 (2020).
*2 A prisoner who has accumulated “three strikes” may
proceed IFP only if the complaint alleges that “the prisoner is
under imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g). A danger that has “dissipated by the time [the]
complaint is filed” is not “imminent.” Abreu v. Brown, 317 F.
Supp. 3d 702, 704 (W.D.N.Y. 2018) (quoting Chavis, 618 F.3d
at 169); see Malik, 293 F.3d at 563 (holding that “by using the
term ‘imminent,’ Congress indicated that it wanted to include
a safety valve for the ‘three strikes’ rule to prevent impending
harms, not those harms that had already occurred” (alteration
omitted)). So to be entitled to the exception, the prisoner
must adequately allege a danger that “exist[s] at the time the
complaint is filed.” Malik, 293 F.3d at 563.

LEGAL PRINCIPLES
Under 28 U.S.C. § 1915, as amended by the Prison Litigation
Reform Act of 1995, a prisoner who cannot afford to pay court
filing fees may proceed IFP and repay the fees according to
a “structured payment plan.” Chavis v. Chappius, 618 F.3d
162, 167 (2d Cir. 2010); 28 U.S.C. § 1915(a)-(b). But certain
prisoners—“so-called ‘frequent filers’ ”—are barred from

DISCUSSION
The three strikes rule squarely applies here. In addition to
this case, Lettieri has filed more than 50 actions in this
Court in the past year. See Lettieri v. Dep't of Just., Case.
No. 23-cv-865, Docket Item 3, at 1 n.1 (W.D.N.Y. Oct.

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1

Lettieri v. Auricchio, Slip Copy (2023)

19, 2023). At least three of those cases were dismissed
because the defendants were immune from suit. See Lettieri v.
Vilardo, Case No. 23-cv-6498, Docket Item 3 (W.D.N.Y. Sept.
21, 2023) (dismissing complaint due to judicial immunity);
Lettieri v. Western Dist. of New York, Case No. 23-cv-770,
Docket Item 7 (W.D.N.Y. Sept. 11, 2023) (same); Lettieri v.
Dep't of Just., Case No. 23-cv-866, Docket Item 3 (W.D.N.Y.
Sept. 19, 2023) (dismissing complaint due to prosecutorial
immunity). 4 Because the Second Circuit has held that
dismissals based on immunity count as “strikes,” see Mills,
645 F.3d at 177; Collazo, 656 F.3d at 134, Lettieri has
accumulated three strikes under 28 U.S.C. § 1915(g). 5
For that reason, Lettieri cannot proceed IFP unless he faces
“imminent danger of serious physical injury.” 28 U.S.C. §
1915(g); see also Malik, 293 F.3d at 562. But his complaint
does not even suggest that is the case. Instead, his complaint
alleges an injury in connection with his criminal trial, which

ended months ago. 6 Therefore, Lettieri is barred from
proceeding IFP under section 1915.

ORDER
*3 Lettieri's motion to proceed IFP, Docket Item 2, therefore
is DENIED. If Lettieri wants to pursue this action, he must
pay the $402.00 filing and administrative fees. If Lettieri fails
to pay the full filing and administrative fees within 30 days
of the date of this order, this case will be dismissed without
prejudice without further order of the Court.
SO ORDERED.
All Citations
Slip Copy, 2023 WL 9066873

Footnotes
1

Lettieri's complaint, and thus the official case caption, misspelled Auricchio's name, which appears correctly
here. The Clerk of the Court shall correct the caption accordingly.

2

On June 14, 2023, a jury found Lettieri guilty on one count of enticement of a minor in violation of 18 U.S.C. §
2422(b). See United States v. Lettieri, Case No. 21-cr-20, Docket Items 146, 150 (W.D.N.Y. June 14, 2023).
Auricchio represented Lettieri in this case from April 15, 2021, see id., Docket Item 17 (W.D.N.Y. Apr. 15,
2021), until March 3, 2022, id., Docket Item 38 (W.D.N.Y. Mar. 3, 2022).

3

The fee to file a civil action is $350.00. Effective May 1, 2013, the Judicial Conference of the United
States added an administrative fee of $50.00 to the cost of filing a civil lawsuit in district court. See
September 2012 Report of the Proceedings of the Judicial Conference of the United States, available at http://
www.uscourts.gov/about-federal-courts/reports-proceedings-judicial-conference-us. Effective December 1,
2020, this fee was increased to $52.00. See District Court Miscellaneous Fee Schedule, https://
www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule.

4

Those three cases are not the only ones filed by Lettieri that have been dismissed for reasons that likely
are “strikes.” See, e.g., Lettieri v. Daniels, Case No. 23-cv-867, Docket Item 3 (W.D.N.Y. Oct. 16, 2023)
(dismissing complaint for failure to state a claim); Lettieri v. Auricchio, Case No. 23-cv-875, Docket Item 3
(W.D.N.Y. Oct. 11, 2023) (same); Lettieri v. Reynolds, Case No. 23-cv-925, Docket Item 4 (W.D.N.Y. Oct.
17, 2023) (same); Lettieri v. Dep't of Just., Case No. 23-cv-897, Docket Item 3 (W.D.N.Y. Oct. 10, 2023)
(dismissing complaint due to prosecutorial immunity). In fact, none of Lettieri's civil complaints that this Court
has screened under 28 U.S.C. §§ 1915(e)(2)(b) and 1915A have raised colorable claims. So Lettieri likely
has many more than three strikes. But three are enough. 28 U.S.C. § 1915(g).

5

Three courts, including this one, have found that Lettieri has garnered three strikes under section 1915. See
Lettieri v. Vilardo, Case No. 23-cv-6563, Docket Item 3 (W.D.N.Y. Oct. 10, 2023) (Wolford, C.J.) (denying

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2

Lettieri v. Auricchio, Slip Copy (2023)

Lettieri's motion to proceed IFP under the three strikes rule); Lettieri v. Broome Cnty. Humane Soc'y, 2023
WL 7017081, at *2-3 (E.D.N.Y. Oct. 25, 2023) (Gonzalez, J.) (same); Lettieri v. Hockwater, Case No. 23cv-1123, Docket Item 3 (W.D.N.Y. Nov. 13, 2023) (Vilardo, J.) (same).
6

Lettieri sues Auricchio for violation of his due process rights and for ineffective assistance of counsel. Docket
Item 1 at 5. He alleges that he was shown an “affidavit” that was purportedly signed by him but that he “[d]id
not sign anything and can prove that the signature was [f]orged.” Id. at 8. He argues that this “show[s]” that
Auricchio “committed a crime.” Id. Those assertions do not suggest that Lettieri was in any “imminent danger
of serious physical injury” when he filed the complaint. See 28 U.S.C. § 1915(g).

End of Document

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3

Carter v. New York State, Not Reported in Fed. Supp. (2020)

2020 WL 4700902
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
David CARTER, Plaintiff,
v.
NEW YORK STATE; C.O. Morges, Downstate
Correctional Facility; C.O. Melendez,
Downstate Correctional Facility, Defendants.
20-CV-5955 (CM)
|
Signed 08/12/2020
Attorneys and Law Firms
David Carter, East Elmhurst, NY, pro se.

ORDER OF DISMISSAL UNDER 28 U.S.C. § 1915(g)
COLLEEN McMAHON, Chief United States District Judge:
*1 Plaintiff, currently detained at the George R. Vierno
Center in the custody of the New York City Department
of Correction (DOC), filed this action pro se in the United
States District Court for the Northern District of New York,
which transferred it here. Plaintiff seeks to proceed without
prepayment of fees, that is, in forma pauperis (“IFP”).
Plaintiff is barred, however, from filing any new action IFP
while a prisoner. See Carter v. New York City John Doe Corr.
Officer, ECF 1:16-CV-3466, 6 (S.D.N.Y. Aug. 25, 2016).
That order relied on 28 U.S.C. § 1915(g), which provides that:

In no event shall a prisoner bring a
civil action [IFP] 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.

“[A] prisoner can proceed IFP even after incurring three
strikes if his complaint alleges an ‘imminent danger of serious
physical injury.’ ” Chavis v. Chappius, 618 F.3d 162, 169 (2d
Cir. 2010) (quoting 28 U.S.C. § 1915(g)). Moreover, courts
“should not make an overly detailed inquiry into whether
the allegations qualify for the exception” because § 1915(g)
“concerns only a threshold procedural question” about when
payment for the filing fee is to be made. Id. Plaintiff alleges
that on May 14, 2019, Correction Officer Morges deliberately
pushed him down a stairwell at Great Meadow Correctional
Facility. Correction Officer Melendez then allegedly helped
Correction Officer Morges further physically assault Plaintiff
at the bottom of the stairwell. 1
In considering whether a prisoner's complaint falls within
the imminent danger exception, “it is not sufficient to allege
that ‘harms ... had already occurred’ ” before the complaint
was filed. Akassy v. Hardy, 887 F.3d 91, 96 (2d Cir. 2018);
Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009) (“[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.”). But allegations of past violence can satisfy the
imminent danger exception when, for example, the past harms
are part of an ongoing pattern of acts. Chavis, 618 F.3d at 170.
Plaintiff's allegations that he suffered a past assault while
incarcerated at Downstate Correctional Facility do not
suggest that he currently faces an imminent danger. Plaintiff
was incarcerated at Great Meadow Correctional Facility
when he filed this complaint in the United States District
Court Northern District of New York, and he is currently
detained at GRVC in DOC custody. Plaintiff makes no
allegation suggesting that this May 2019 incident involving
two correction officers at Downstate Correctional Facility is
part of a continuing pattern of ongoing acts.
*2 The Court therefore denies Plaintiff's request to proceed
IFP in this action because he is barred under § 1915(g)
and the complaint does not show that he faces imminent
danger. Plaintiff therefore must prepay the $350.00 filing fee
to proceed with this action.

CONCLUSION
The Clerk of Court is directed to mail a copy of this
order to Plaintiff and note service on the docket. The Court
denies Plaintiff's request to proceed IFP, and the complaint is
dismissed without prejudice under the PLRA's “three-strikes”

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1

Carter v. New York State, Not Reported in Fed. Supp. (2020)

rule. See 28 U.S.C. § 1915(g). 2 Plaintiff remains barred from
filing any future action IFP while in custody, unless he is
under imminent threat of serious physical injury. 3 Id.

and therefore IFP status is denied for the purpose of an appeal.
See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

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,

All Citations
Not Reported in Fed. Supp., 2020 WL 4700902

Footnotes
1

The Court previously dismissed Plaintiff's April 30, 2020 complaint, which appears to have brought claims
arising from the same incident at Downstate Correctional Facility. See Carter v. Morges, No. 20-CV-3367
(CM) (S.D.N.Y. May 18, 2020).

2

Plaintiff may commence a new action by paying the filing fee. If Plaintiff does so, that complaint will be
reviewed under 28 U.S.C. § 1915A, which requires the Court to dismiss any civil rights complaint from a
prisoner if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks
monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).

3

The Court may bar any vexatious litigant (including a nonprisoner) from filing future actions (even if the filing
fee is paid) without first obtaining leave from the Court. See In re Martin-Trigona, 9 F.3d 226, 227-30 (2d Cir.
1993) (discussing sanctions courts may impose on vexatious litigants, including “leave of court” requirement).

End of Document

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2

Lettieri v. Bonanno, Slip Copy (2023)

KeyCite Blue Flag – Appeal Notification
Appeal Filed by Lettieri v. Bonanno, 2nd Cir., January 5, 2024

2023 WL 9184676
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
David C. LETTIERI, Plaintiff,
v.
Paul E. BONANNO, Hon. Lawrence
Joseph Vilardo, Defendants. 1
6:23-CV-06515-EAW
|
Signed December 18, 2023
Attorneys and Law Firms
David C. Lettieri, Lockport, NY, Pro Se.

ORDER
Elizabeth A. Wolford, Chief Judge
*1 Pro se Plaintiff, David C. Lettieri (“Plaintiff”), is a
prisoner who 2 was found guilty by a jury on June 14, 2023, of
one count of enticement of a minor in violation of 18 U.S.C.
§ 2422(b), United States v. Lettieri, Case No. 1:21-cr-00020LJV, Dkt. 146; Dkt. 150 (W.D.N.Y. June 14, 2023). He has
not yet been sentenced.
In the present case, Plaintiff asserts claims under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971) (“Bivens”), 3 against one of the prosecutors
in his criminal prosecution and Judge Vilardo, who is assigned
to his criminal case and almost all the other 55 plus civil
actions and habeas petitions Plaintiff has brought in this
Court. (Dkt. 1 at 8-9). Plaintiff also seeks permission to
proceed in forma pauperis (“IFP”) (Dkt. 2), and has moved
for order directing that Defendants undergo mental health
examinations (Dkt. 6).
Because Plaintiff meets the statutory requirements of 28
U.S.C. § 1915(a) and has filed the required authorization
and certification (Dkt. 2), the Court grants the IFP motion. 4
Therefore, under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a),
the Court screens the complaint. For the reasons that follow,

Plaintiff's complaint is dismissed with prejudice under §§
1915(e)(2)(B) and 1915A(b).

DISCUSSION
Section 1915 “provide[s] an efficient means by which a court
can screen for and dismiss legally insufficient claims.” Abbas
v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citing Shakur v.
Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). The court shall
dismiss a complaint in a civil action in which a prisoner seeks
redress from a governmental entity, or an officer or employee
of a governmental entity, if the court determines that the
complaint (1) fails to state a claim upon which relief may be
granted or (2) seeks monetary relief against a defendant who
is immune from such relief. See 28 U.S.C. § 1915A(b)(1)-(2).
*2 Generally, the court will afford a pro se plaintiff an
opportunity to amend or to be heard prior to dismissal “unless
the court can rule out any possibility, however unlikely it
might be, that an amended complaint would succeed in stating
a claim.” Abbas, 480 F.3d at 639; see also Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000) (“A pro se complaint is to be
read liberally. Certainly the court should not dismiss without
granting leave to amend at least once when a liberal reading
of the complaint gives any indication that a valid claim might
be stated.” (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d
794, 795 (2d Cir. 1999))). But leave to amend pleadings may
be denied when any amendment would be “futile.” Cuoco,
222 F.3d at 112.
I. THE COMPLAINT
In evaluating a complaint, the court must accept all factual
allegations as true and must draw all inferences in the
plaintiff's favor. See Larkin v. Savage, 318 F.3d 138, 139
(2d Cir. 2003) (per curiam); King v. Simpson, 189 F.3d 284,
287 (2d Cir. 1999). “Specific facts are not necessary,” and
the plaintiff “need only ‘give the defendant fair notice of
what the ... claim is and the grounds upon which it rests.’
” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also
Boykin v. Keycorp, 521 F.3d 202, 216 (2d Cir. 2008) (“[E]ven
after Twombly, dismissal of a pro se claim as insufficiently
pleaded is appropriate only in the most unsustainable of
cases.”). Although “a court is obliged to construe [pro se]
pleadings liberally, particularly when they allege civil rights
violations,” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d
Cir. 2004), even pleadings submitted pro se must meet the

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1

Lettieri v. Bonanno, Slip Copy (2023)

notice requirements of Rule 8 of the Federal Rules of Civil
Procedure, Wynder v. McMahon, 360 F.3d 73, 79 n.11 (2d Cir.
2004).
Plaintiff has sued Assistant United States Attorney Paul
Bonanno (“Bonanno”) and Judge Vilardo. He alleges that,
at a hearing in his criminal prosecution held on September
13, 2023, Bonanno “admitted” to United States Magistrate
Judge Michael J. Roemer that the online social media account
of “Leaf Liate” 5 was “fake[d]” ... by the government” in
order to obtain revocation of Plaintiff's bail. (Dkt. 1 at 8). 6
Plaintiff further claims that Bonanno “may not be mental[ly]
stable” because in his memorandum, Bonanno claimed “that
the person still exists and it would ... be proven at trial in
the evidence.” (Id.). On the day of jury selection, Plaintiff
finally saw the “Jen[c]k[s] 3500 material,” 7 which showed
“at five to ten documents [and a] government agent stat[ing]”
that “there wasn't going to be any proof at trial in which there
wasn't.” (Id.).
Plaintiff also alleges that Judge Vilardo refused to convert
a habeas corpus petition Plaintiff filed under 28 U.S.C. §
2241 to a civil action under 42 U.S.C. § 1983, see Lettieri v.
Reynolds, Case No. 1:22-cv-00926-LJV, Dkt. 20 (W.D.N.Y.
Aug. 2, 2023), and that Judge Vilardo has denied “every
lawsuit” that Plaintiff has filed because Plaintiff has not
complied with the statutory IFP “requirements,” (Dkt. 1 at
8-9).
Plaintiff seeks monetary damages only. (Id. at 6).
II. ABSOLUTE JUDICIAL AND PROSECUTORIAL
IMMUNITY
Plaintiff's claims are barred by the doctrines of absolute
judicial and prosecutorial immunity.
1. Judicial Immunity
*3 Judges are absolutely immune from suit for any actions
taken within the scope of their judicial responsibilities. See,
e.g., Mireles v. Waco, 502 U.S. 9, 12 (1991). “Such judicial
immunity is conferred in order to insure ‘that a judicial officer,
in exercising the authority vested in him, shall be free to act
upon his own convictions, without apprehension of personal
consequences to himself.’ ” Bliven v. Hunt, 579 F.3d 204, 209
(2d Cir. 2009) (quoting Bradley v. Fisher, 80 U.S. 335, 347
(1871)). “Thus, even allegations of bad faith or malice cannot
overcome judicial immunity.” Id.

Indeed, a “judge will not be deprived of immunity because
the action he took was in error, was done maliciously, or
was in excess of his authority; rather, he will be subject
to liability only when he has acted in the clear absence of
all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356-57
(1978) (quotation omitted); see also Maestri v. Jutkofsky, 860
F.2d 50 (2d Cir. 1988) (finding no immunity where town
justice issued arrest warrant for conduct which took place
within neither his town nor an adjacent town, thereby acting in
the absence of all jurisdiction). A judge is immune for actions
performed in his judicial capacity. C.f. Gregory v. Thompson,
500 F.2d 59, 62 (9th Cir. 1974) (finding no immunity where
judge assaulted litigant).
Here, Plaintiff alleges that Judge Vilardo refused to convert
a habeas petition to a civil action under § 1983 and has
denied “every” lawsuit he has filed because Plaintiff has
not complied with the requirements for proceeding IFP.
Judge Vilardo has administratively closed many of Plaintiff's
civil actions because Plaintiff did not pay the filing and
administrative fees or submit a complete IFP motion that
included a prison certification, see 28 U.S.C. § 1915(a)(2),
and a prison authorization, see 28 U.S.C. § 1915(b)(1)-(4).
See 23-mc-32 (ordering Plaintiff to show cause why he should
not be prohibited from filing cases in this District without
prepaying the filing and administrative fees ($402.00), see 28
U.S.C. § 1914(a), or submitting a complete IFP motion). 8
Plaintiff makes no allegation that Judge Vilardo acted in
the clear absence of all jurisdiction. He complains precisely
of actions Judge Vilardo performed in his judicial capacity.
Therefore, absolute judicial immunity bars Plaintiff's claims
against Judge Vilardo and Plaintiff claims against Judge
Vilardo are dismissed with prejudice.
2. Absolute Prosecutorial Immunity
In addition to judges, prosecutors performing traditional
prosecutorial activities are given absolute immunity in §
1983 suits and Bivens suits. See Imbler v. Pachtman, 424
U.S. 409, 427-28 (1976). “The absolute immunity accorded
to government prosecutors encompasses not only their
conduct of trials but all of their activities that can fairly
be characterized as closely associated with the conduct of
litigation or potential litigation....” Barrett v. United States,
798 F.2d 565, 571-72 (2d Cir. 1986); see also Bouchard v.
Olmsted, 775 F. App'x 701, 703-04 (2d Cir. 2019) (summary
order) (determining that federal prosecutors were immune

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2

Lettieri v. Bonanno, Slip Copy (2023)

from Bivens claims); Dory v. Ryan, 25 F.3d 81, 83 (2d
Cir. 1994) (“[A]bsolute immunity protects a prosecutor from
[civil] liability for virtually all acts, regardless of motivation,
associated with his function as an advocate.”).
*4 As best the Court can discern, Plaintiff claims that
Bonanno made certain arguments or statements at a hearing
in Plaintiff's criminal prosecution regarding the existence
of an individual's online account and later presented a
memorandum to the Court contradicting those arguments or
statements. (Dkt. 1 at 8). Bonanno's actions were performed
within his role as an advocate and were clearly associated
within the conduct of litigation or potential litigation of
Plaintiff's criminal charges. Therefore, Bonanno is entitled
to absolute prosecutorial immunity from Plaintiff's claims
and Plaintiff's claims against Bonanno are dismissed with
prejudice.
III. LEAVE TO AMEND
The Second Circuit has advised that a pro se complaint should
not be dismissed without an opportunity to amend unless such
amendment would be futile. Cuoco v. Moritsugu, 222 F.3d 99,
122 (2d Cir. 2000). The Court has considered whether to grant
Plaintiff leave to amend but finds that because the defects in
Plaintiff's complaint are substantive, “better pleading will not
cure [them].” Id. (affirming denial of leave to amend because
claims futile).

Accordingly, Plaintiff's complaint is dismissed with
prejudice. 9

CONCLUSION
For the reasons set forth above, the Court grants Plaintiff's
IFP Motion (Dkt. 2), and dismisses Plaintiff's complaint with
prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(iii) and 1915A(b)
(2). Plaintiff's motion for an order directing that Defendants
undergo mental health examinations (Dkt. 6) is denied as
moot.
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a),
that any appeal from this Order would not be taken in good
faith and leave to appeal to the Court of Appeals as a poor
person is denied. Coppedge v. United States, 369 U.S. 438,
444-45 (1962). Any request to proceed on appeal in forma
pauperis should be directed on motion to the United States
Court of Appeals for the Second Circuity in accordance with
Rule 24 of the Federal Rules of Appellate Procedure.
SO ORDERED.
All Citations
Slip Copy, 2023 WL 9184676

Footnotes
1

The Clerk of Court is directed to amend the caption of this action as set forth herein.

2

Since November 2022, Plaintiff has filed approximately 60 civil actions and petitions in this Court. Judge
Vilardo recently found that Plaintiff has engaged in a pattern of abuse of the judicial process, In re: David
C. Lettieri, Case No. 1:23-mc-32, Dkt. 1 (W.D.N.Y. Sept. 5, 2023) (“23-mc-32”), and should be sanctioned
based on his vexatious litigation history, id. at Dkt. 11. Plaintiff was directed to show cause why he should
not be precluded from filing any further actions in this Court for one year without first obtaining permission
from the Court. Id. at Dkt. 11.

3

Because Plaintiff brings constitutional claims against a federal official, the Court construes his claims as
brought under Bivens. See Tavarez v. Reno, 54 F.3d 109, 109-10 (2d Cir. 1995) (“Although Tavarez brought
the action under § 1983, the district court properly construed the complaint as an action under” Bivens.).

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3

Lettieri v. Bonanno, Slip Copy (2023)

4

Following the filing of this action, this Court found that Plaintiff had garnered three strikes under 28 U.S.C. §
1915(g) and, therefore, could not proceed IFP without showing that he is under “imminent danger of serious
physical injury.” See Lettieri v. Vilardo, Case No. 6:23-cv-06563-EAW, Dkt. 3 (W.D.N.Y. Oct. 10, 2023).

5

The spelling of this name is not clear.

6

Because the complaint is confusing, the Court quotes directly from it where appropriate.

7

See Jencks Act, 18 U.S.C. § 3500 (addressing timing of disclosure of statements of government witnesses).

8

See Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998) (“A
court may take judicial notice of a document filed in another court not for the truth of the matters asserted
in the other litigation, but rather to establish the fact of such litigation and related filings.” (internal quotation
marks omitted)).

9

The Supreme Court has cautioned that the Bivens remedy should rarely be extended to new contexts. See
Ziglar v. Abbasi, 582 U.S. 120, 135-40 (2017). In light of Defendants’ immunity, the Court finds that a Bivens
analysis is unnecessary but notes that it would be highly unlikely that it would extend to the context at issue
here.

End of Document

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4

Lettieri v. Bonanno, Slip Copy (2023)

KeyCite Red Flag - Severe Negative Treatment
On Reconsideration Lettieri v. Bonanno, W.D.N.Y., May 16, 2024

2023 WL 9421209
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
David C. LETTIERI, Plaintiff,
v.
Paul E. BONANNO, Defendant.
23-CV-1081-LJV
|
Signed December 4, 2023
Attorneys and Law Firms
David C. Lettieri, Lockport, NY, Pro Se.

ORDER
LAWRENCE J. VILARDO, UNITED STATES DISTRICT
JUDGE
*1 The pro se plaintiff, David C. Lettieri, was a prisoner
incarcerated at the Niagara County Jail when he commenced
this action under 42 U.S.C. § 1983. Docket Item 1. He
alleges that Assistant United States Attorney Paul E. Bonanno
violated his right to due process and engaged in malicious
prosecution during the federal criminal prosecution that
resulted in Lettieri's conviction. 1 Id. at 5, 8.
Lettieri has moved to proceed in forma pauperis (“IFP”)
under 28 U.S.C. § 1915(a)-(b). Docket Item 2. He also filed
motions for an immediate trial, Docket Item 3, and to add
a defendant, Docket Item 4. For the reasons that follow,
Lettieri's motion to proceed IFP is denied, and his other
motions are denied as well. Therefore, his complaint will
be dismissed without prejudice unless he pays the required
$402.00 filing and administrative fees. 2

LEGAL PRINCIPLES
Under 28 U.S.C. § 1915, as amended by the Prison Litigation
Reform Act of 1995, a prisoner who cannot afford to pay court
filing fees may proceed IFP and repay the fees according to

a “structured payment plan.” Chavis v. Chappius, 618 F.3d
162, 167 (2d Cir. 2010); 28 U.S.C. § 1915(a)-(b). But certain
prisoners—“so-called ‘frequent filers’ ”—are barred from
filing IFP. Chavis, 618 F.3d at 167. The statute defines such
litigants as those who have,

on 3 or more prior occasions, while
incarcerated or detained in any facility,
brought an action or appeal ... 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).
Courts refer to this provision as the “three strikes rule.”
Malik v. McGinnis, 293 F.3d 559, 560 (2d Cir. 2002). Claims
dismissed because of judicial or prosecutorial immunity are
“frivolous” and therefore “strikes” under 28 U.S.C. § 1915(g).
See Mills v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (judicial
immunity); Collazo v. Pagano, 656 F.3d 131, 134 (2d Cir.
2011) (prosecutorial immunity). Likewise, any dismissal for
failure to state a claim is a “strike” regardless of whether the
dismissal was with or without prejudice. See Lomax v. OrtizMarquez, 140 S. Ct. 1721, 1727 (2020).
*2 A prisoner who has accumulated “three strikes” may
proceed IFP only if the complaint alleges that “the prisoner is
under imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g). A danger that has “dissipated by the time [the]
complaint is filed” is not “imminent.” Abreu v. Brown, 317 F.
Supp. 3d 702, 704 (W.D.N.Y. 2018) (quoting Chavis, 618 F.3d
at 169); see Malik, 293 F.3d at 563 (holding that “by using the
term ‘imminent,’ Congress indicated that it wanted to include
a safety valve for the ‘three strikes’ rule to prevent impending
harms, not those harms that had already occurred” (alteration
omitted)). So to be entitled to the exception, the prisoner
must adequately allege a danger that “exist[s] at the time the
complaint is filed.” Malik, 293 F.3d at 563.

DISCUSSION

© 2024 Thomson Reuters. No claim to original U.S. Government Works.

1

Lettieri v. Bonanno, Slip Copy (2023)

The three strikes rule squarely applies here. In addition to
this case, Lettieri has filed more than 50 actions in this
Court in the past year. See Lettieri v. Dep't of Just., Case.
No. 23-cv-865, Docket Item 3, at 1 n.1 (W.D.N.Y. Oct.
19, 2023). At least three of those cases were dismissed
because the defendants were immune from suit. See Lettieri v.
Vilardo, Case No. 23-cv-6498, Docket Item 3 (W.D.N.Y. Sept.
21, 2023) (dismissing complaint due to judicial immunity);
Lettieri v. Western Dist. of New York, Case No. 23-cv-770,
Docket Item 7 (W.D.N.Y. Sept. 11, 2023) (same); Lettieri v.
Dep't of Just., Case No. 23-cv-866, Docket Item 3 (W.D.N.Y.
Sept. 19, 2023) (dismissing complaint due to prosecutorial
immunity). 3 Because the Second Circuit has held that
dismissals based on immunity count as “strikes,” see Mills,
645 F.3d at 177; Collazo, 656 F.3d at 134, Lettieri has
accumulated three strikes under 28 U.S.C. § 1915(g). 4

ended months ago. 5 Therefore, Lettieri is barred from
proceeding IFP under section 1915.

ORDER
*3 Lettieri's motion to proceed IFP, Docket Item 2, therefore
is DENIED. His motions for an immediate trial, Docket
Item 3, and to add a defendant, Docket Item 4, likewise are
DENIED without prejudice. If Lettieri wants to pursue this
action, he must pay the $402.00 filing and administrative
fees. If Lettieri fails to pay the full filing and administrative
fees within 30 days of the date of this order, this case will
be dismissed without prejudice without further order of the
Court.
SO ORDERED.

For that reason, Lettieri cannot proceed IFP unless he faces
“imminent danger of serious physical injury.” 28 U.S.C. §
1915(g); see also Malik, 293 F.3d at 562. But his complaint
does not even suggest that is the case. Instead, his complaint
alleges an injury in connection with his criminal trial, which

All Citations
Slip Copy, 2023 WL 9421209

Footnotes
1

On June 14, 2023, a jury found Lettieri guilty on one count of enticement of a minor in violation of 18 U.S.C. §
2422(b). See United States v. Lettieri, Case No. 21-cr-20, Docket Items 146, 150 (W.D.N.Y. June 14, 2023).
In the complaint, Lettieri appears to focus on Bonanno's actions at the September 7, 2023, court proceeding
addressing Lettieri's motions for acquittal and a new trial. See id., Docket Item 166 (W.D.N.Y. Sept. 7, 2023).

2

The fee to file a civil action is $350.00. Effective May 1, 2013, the Judicial Conference of the United
States added an administrative fee of $50.00 to the cost of filing a civil lawsuit in district court. See
September 2012 Report of the Proceedings of the Judicial Conference of the United States, available at http://
www.uscourts.gov/about-federal-courts/reports-proceedings-judicial-conference-us. Effective December 1,
2020, this fee was increased to $52.00. See District Court Miscellaneous Fee Schedule, https://
www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule.

3

Those three cases are not the only ones filed by Lettieri that have been dismissed for reasons that likely
are “strikes.” See, e.g., Lettieri v. Daniels, Case No. 23-cv-867, Docket Item 3 (W.D.N.Y. Oct. 16, 2023)
(dismissing complaint for failure to state a claim); Lettieri v. Auricchio, Case No. 23-cv-875, Docket Item 3
(W.D.N.Y. Oct. 11, 2023) (same); Lettieri v. Reynolds, Case No. 23-cv-925, Docket Item 4 (W.D.N.Y. Oct.
17, 2023) (same); Lettieri v. Dep't of Just., Case No. 23-cv-897, Docket Item 3 (W.D.N.Y. Oct. 10, 2023)
(dismissing complaint due to prosecutorial immunity). In fact, none of Lettieri's civil complaints that this Court
has screened under 28 U.S.C. §§ 1915(e)(2)(b) and 1915A have raised colorable claims. So Lettieri likely
has many more than three strikes. But three are enough. 28 U.S.C. § 1915(g).

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2

Lettieri v. Bonanno, Slip Copy (2023)

4

Three courts, including this one, have found that Lettieri has garnered three strikes under section 1915. See
Lettieri v. Vilardo, Case No. 23-cv-6563 (W.D.N. Y Oct. 10, 2023) (Wolford, C.J.) (denying Lettieri's motion to
proceed IFP under the three strikes rule); Lettieri v. Broome Cnty. Humane Soc'y, 2023 WL 7017081, at *2-3
(E.D.N.Y. Oct. 25, 2023) (Gonzalez, J.) (same); Lettieri v. Hockwater, Case No. 23-cv-1123, Docket Item 3
(W.D.N.Y. Nov. 13, 2023) (Vilardo, J.) (same).

5

Lettieri says that Bonanno “abused his position as an ‘officer’ of the [C]ourt by lying to a [j]udge [i]n the
courtroom.” Docket Item 1 at 9. He alleges that Bonanno knew or should have known that Lettieri's cell phone
service provider was Verizon—not T-Mobile—and that saying otherwise during a court proceeding violated
Lettieri's right to “[d]ue process.” Id. at 8. Those assertions do not suggest that Lettieri was in any “imminent
danger of serious physical injury” when he filed the complaint. See 28 U.S.C. § 1915(g).

End of Document

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