Williams v. United States

Filing 18

MEMORANDUM-DECISION AND ORDER adopting Magistrate Judge Peebles' 13 Report and Recommendations in its entirety. Plaintiff's 12 Motion for Leave to Proceed in forma pauperis is DENIED. Plaintiff shall pay the filing fee no later than 30 days from the date of this Order or the action will be dismissed w/out further order of the Court. Signed by Senior Judge Norman A. Mordue on 3/13/2014. (amt) [Pltf served via reg. mail]

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
RONALD EDWARD WILLIAMS,
Plaintiff,
vs.
5:13-CV-422 (NAM/DEP)
UNITED STATES OF AMERICA,

N

Defendant.
___________________________________________
APPEARANCES:

OF COUNSEL:

Ronald Edward Williams, Pro Se
05122-055
Terre Haute Federal Correctional Institution
P.O. Box 33
Terre Haute, Indiana 47808
A

Norman A. Mordue, Senior U.S. District Judge:
MEMORANDUM DECISION AND ORDER
I.

INTRODUCTION
Plaintiff commenced the present action on April 15, 2013. In the words of the assigned

Magistrate Judge in this matter, his “complaint is far from a model of clarity. It suggests that
this action is commenced under Rule 7001 of the Federal Rules of Bankruptcy Procedure, but it
M

fails to identify a related bankruptcy proceeding.” Liberally construed, the complaint generally
alleges that the United States engaged in a fraudulent transfer of plaintiff’s property pursuant to
28 U.S.C. §§ 2041-2043, and that the transfer relates to a criminal action pending against plaintiff
in this district. However, plaintiff neither paid the required filing fee nor submitted a motion for
leave to proceed in forma pauperis (“IFP”) with his complaint. Plaintiff filed a motion for IFP
status on September 16, 2013.

Defendants’ motion for IFP status was referred to the Hon. David E. Peebles, United
States Magistrate Judge, for a Report-Recommendation pursuant to 28 U.S.C. § 636 (b) (1) (B)
and Local Rule 72.3 (c). Magistrate Judge Peebles recommended that plaintiff’s motion be
denied. Plaintiff filed timely objections to the Report-Recommendation.
Pursuant to 28 U.S.C. § 636 (b) (1) (C), this Court engages in a de novo review of any part
of a magistrate judge’s report-recommendation to which a party specifically objects. Failure to
N

object timely to any portion of a magistrate's report-recommendation operates as a waiver of
further judicial review of those matters. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993);
Small v. Secretary of Health & Human Serv., 892 F.2d 15, 16 (2d Cir. 1989).
II.

FACTUAL BACKGROUND
The facts of this case are set forth in the Report-Recommendation prepared by Magistrate

A

Judge Peebles which this Court adopts:

M

In this case, as of April 15, 2013, the date upon which this action was
commenced, plaintiff had accrued three dismissals . . .qualifying as
strikes under . . . [28 U.S.C. §] 1915 (g). Plaintiff accrued his first
strike in Williams v. Annucci, No. 10-CV-0836 (N.D.N.Y. filed on
July 9, 2010) (Hurd, J.). District Judge David N. Hurd dismissed the
case, on December 6, 2010, upon finding that plaintiff’s complaint,
“as presented to the Court, cannot be supported by an arguable basis
in law and must therefore be dismissed pursuant to 28 U.S.C. §§
1915(e) (2) (B) and 1915A for failure to state a claim.” Annucci, No.
10-CV-0836, Decision and Order (Dkt. No. 5) at 8. Plaintiff accrued
his second strike in Williams v. Gould, No. 11-CV-1501 (N.D.N.Y.
filed on Dec. 21, 2011) (Hurd, J.). In that case, Judge Hurd again
dismissed plaintiff’s amended complaint on July 31, 2012, pursuant to
28 U.S.C. §§ 1915 (e) (2) (B) and 1915A. Gould, No. 11-CV-1501,
Decision and Order (Dkt. No. 13) at 7. Plaintiff accrued a third strike
on January 14, 2013, when the Second Circuit dismissed his appeal in
Gould, No. 11-CV-1501, “because it lacks an arguable basis in law or
fact.” Gould, 11-CV-1501, Mandate (Dkt. No. 18).
III.

THE REPORT-RECOMMENDATION
2

Magistrate Judge Peebles recommends denial of plaintiffs motion for IFP status because
plaintiff accrued three strikes under section 28 U.S.C. § 1915 (g) four months prior to filing the
instant complaint, and thus is not permitted to proceed IFP in this action.
Plaintiff objects to the Report-Recommendation on the ground that venue and jurisdiction
are “appropriate” in the “Bankruptcy Court.” Notably, plaintiff does not raise any factual or legal
objections to the Magistrate Judge’s “three strikes” analysis.
N

Having conducted a de novo review of the record, the Court agrees with the determination
of the Magistrate Judge that plaintiff's motion for IFP status should be denied for the reasons
stated in the Report-Recommendation.
IV.

DISCUSSION
28 U.S.C. § 1915 (a) (1), section 1915(g) provides:

A

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.
28 U.S.C. § 1915 (g).
The manifest intent of Congress in enacting this “three strikes” provision was to deter the filing of

M

multiple, frivolous civil rights suits by prison inmates. Tafari v. Hues, 473 F.3d 440, 443-44 (2d
Cir. 2007) (citing Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir. 1997)); accord, Gill v. Pidlychak,
No. 02-CV-1460, 2006 WL 3751340, at *2 (N.D.N.Y. Dec. 19, 2006) (Scullin, S.J., adopting
report and recommendation by Treece, M.J.). The prophylactic effect envisioned under section
1915 (g) is accomplished by requiring a prisoner who has accumulated three strikes to engage in
the same cost-benefit analysis before filing suit as other civil litigants engage in – that is, the
3

provision forces inmates to assess whether the result sought to be achieved justifies the filing fee
expenditure. See Tafari, 473 F.3d at 443.
The Second Circuit has defined a frivolous claim as one that “lacks an arguable basis
either in law or in fact.” Tafari, 473 F.3d at 442 (citing Neitzke v. Williams, 490 U.S. 319, 325
(1989)). To determine whether a dismissal satisfies the failure-to-state-a-claim prong of section
1915, courts look to Fed. R. Civ. P. 12 (b) (6) for guidance. See Tafari, 473 F.3d at 442. The
N

question of whether the dismissal of a prior action constitutes a strike for purposes of section
1915(g) is a matter of statutory interpretation. See id.
As a safety valve, section 1915(g) provides that a prisoner who is in “imminent danger of
serious physical injury” may avoid application of the three strikes rule of section 1915(g). 28
U.S.C. § 1915(g); see also Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir. 2002). In

A

accordance with this exception, an inmate who has had three prior “strikes” but nonetheless
wishes to commence a new action IFP must show that he was under imminent danger at the time
of filing; the exception does not provide a basis to avoid application of the three strikes on the
basis of past harm. See Malik, 293 F.3d at 562-63. An inmate who claims the benefit of this
exception must also show that the danger faced rises to the level of exposure to a “serious
physical injury.” 28 U.S.C. § 1915(g). The imminent danger claimed by the inmate, moreover,

M

must be real, and not merely speculative or hypothetical. See Johnson v. Barney, No.
04-CV-10204, 2005 WL 2173950, at *1-2 (S.D.N.Y. Sept. 6, 2005) (finding that inmate’s
allegation of danger at facility he was not housed at, but may pass through at infrequent occasions
in the future, does not establish imminent danger).
For a three-strikes litigant to qualify for the imminent danger exception, his complaint

4

“must reveal a nexus between the imminent danger it alleges and the claims it asserts.” Pettus v.
Morgenthau, 554 F.3d 293, 298 (2d Cir. 2009). When determining whether the requisite
relationship is present a court must examine “(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 299
(emphasis in original).
N

The term “serious physical injury,” as utilized in section 1915 (g), is nowhere concretely
defined, although it has been construed by various courts as including a “disease that could result
in serious harm or even death[.]” Ibrahim v. District of Columbia, 463 F.3d 3, 7 (D.C. 2006). In
deciding whether to invoke the exception, a court must examine the available pleadings,
construed in a light most favorable to the plaintiff, to determine whether the plaintiff has alleged a

A

serious physical injury. See McAlphin v. Toney, 281 F.3d 709, 710 (8th Cir. 2002).
In this case, plaintiff does not raise any factual or legal objections to the Magistrate
Judge’s meticulous “three strikes” analysis. Thus, these prior dismissals are deemed to count as
“strikes” under section 1915 (g). As a further matter, as noted in the Report-Recommendation,
plaintiff does not assert any factual claim concerning a physical injury or the danger of imminent

M

harm. Thus, this Court agrees with the Magistrate Judge’s determination that the imminent
danger exception does not apply.
V.

CONCLUSION
Based on the foregoing, it is hereby
ORDERED that the Report-Recommendation of Magistrate Judge Peebles (Dkt. # 13) is

hereby adopted in its entirety; and it is therefore

5

ORDERED that based upon the reasons set forth by the Magistrate Judge in his
Report-Recommendation plaintiff’s motion for IFP status (Dkt. #12) is DENIED, and it is further
ORDERED that shall pay the full filing fee of $400 no later than thirty days from
the date of this Order. Plaintiff is advised that his failure to pay the full filing fee will result in
dismissal of this action without further action by the court
ORDERED that the Clerk of the Court shall serve a copy of this Order upon all parties by
N

electronic or regular mail and the Magistrate Judge assigned to this case.
IT IS SO ORDERED.
Dated: March 13, 2014
Syracuse, New York

A
M

6