Gosier v. Collins et al
Filing
11
ORDER and REPORT-RECOMMENDATION: ORDERED that the Clerk provide the Superintendent of the facility, designated by Plaintiff as his current location, with a copy of Plaintiff's inmate authorization (Dkt. No. 3), and notify the official that this action has been filed and that Plaintiff is required to pay the Northern District of New York the statutory filing fee of $350.00 in installments, over time, pursuant to 28 U.S.C. § 1915; and it is further ORDERED that the Clerk provide a c opy of Plaintiff's inmate authorization (Dkt. No. 3) to the Financial Deputy of the Clerk's Office; and it is further ORDERED that the Clerk update the docket to (1) add David A. Salle, Detective, Shield 11201 as a Defendant; and (2) correc t the spelling of the John "Doe" Defendants; and it is further ORDERED that Plaintiff must, within fourteen (14) days, execute and file an affidavit pursuant to Federal Rule of Civil Procedure 11 and his failure to do so may result in dismi ssal of this action without prejudice; and it is further RECOMMENDED that upon receipt of Plaintiff's executed Rule 11 affidavit the Clerk be directed to attach the same to Plaintiff's amended complaint; and it is further RECOMMENDED that P laintiff's amended complaint (Dkt. No. 9) be ACCEPTED for filing to the extent that it asserts: (1) Fourth Amendment false arrest claims against Defendants John Doe #1 and John Doe #2; and (2) Fourth Amendment malicious prosecution claims agains t Defendants Collins, Salle, John Doe #1, and John Doe #2; and it is further RECOMMENDED that, except as to the foregoing, the remaining claims asserted in the amended complaint be DISMISSED without prejudice for failure to state a claim upon which r elief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1); and is is further ORDERED that the Clerk serve a copy of the Order and Report-Recommendation on Plaintiff, along with a copy of the unpublished deci sion cited herein; and it is further ORDERED that the Clerk serve a Rule 11 affidavit and a copy of the amended complaint (Dkt. No. 9) on Plaintiff. Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has fourteen days within which to file written obje ctions to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW.Objections to R&R due by 11/8/2024. Case Review Deadline 11/12/2024).Sign ed by Magistrate Judge Therese Wiley Dancks on 10/25/2024. (Copy of Inmate Authorization Form and Superintendent's Letter served upon Superintendent via regular mail. Copy of Order and Report-Recommendation, Amended Complaint, and Affidavit served upon Plaintiff via regular mail.)(ham)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
WILLIE THOMAS GOSIER,
Plaintiff,
v.
6:23-cv-1485
(DNH/TWD)
DAVID J. COLLINS, et al.,
Defendants.
__________________________________________
APPEARANCES:
WILLIE THOMAS GOSIER
Plaintiff, pro se
24067
Oneida County Correctional Facility
6075 Judd Road
Oriskany, NY 13424
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
ORDER AND REPORT-RECOMMENDATION
I.
INTRODUCTION
Plaintiff Willie Thomas Gosier commenced this action by filing a pro se civil rights
complaint pursuant to 42 U.S.C. § 1983 (“Section 1983”), together with an application to
proceed in forma pauperis (“IFP”). Dkt. Nos. 1, 2, 3. On March 8, 2024, the Court granted
Plaintiff’s IFP application and advised by report and recommendation (“R&R”) that Plaintiff’s
complaint be dismissed with leave to amend. Dkt. No. 4. On March 27, 2024, the Hon. David
N. Hurd, U.S. District Judge, accepted and adopted the R&R. See Dkt. No. 5. On May 23, 2024,
Plaintiff timely filed an amended complaint, which is before the Court for initial review. Dkt.
No. 9.
II.
SUFFICIENCY OF THE AMENDED COMPLAINT
Because Plaintiff is proceeding IFP and is an inmate suing one or more government
employees, his amended complaint must be reviewed in accordance with 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b). 1
A.
Relevant Legal Standard
The Court shall dismiss a complaint in a civil action if it is frivolous, malicious, fails to
state a claim on which relief may be granted, or seeks monetary relief against a defendant who is
immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); 28 U.S.C. § 1915A(b).
A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (holding that “a
finding of factual frivolousness is appropriate when the facts alleged rise to the level of the
irrational or the wholly incredible”); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437
(2d Cir. 1998) (“[A]n action is ‘frivolous’ when either: (1) the factual contentions are clearly
baseless . . . or (2) the claim is based on an indisputably meritless legal theory.”).
To survive dismissal for failure to state a claim, a complaint must contain a short and
plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2).
This short and plain statement of the claim must be “plausible on its face.” Twombly, 550 U.S. at
1
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court
without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, No.
09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent,
incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently
pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate
accounts.” Id. (citing 28 U.S.C. § 1915(b) and Harris v. City of New York, 607 F.3d 18, 21 (2d
Cir. 2010)). Additionally, Plaintiff will still be required to pay fees he may incur in this action,
including copying and/or witness fees.
2
570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The statement of the claim must do more than
present “an unadorned, the-defendant-harmed-me accusation.” Id. It must “give the defendant
fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555
(internal punctuation and citations omitted); see also Fed. R. Civ. P. 8(a)(2).
In determining whether a complaint states a claim upon which relief may be granted, “the
court must accept the material facts alleged in the complaint as true and construe all reasonable
inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994).
“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
In reviewing a pro se complaint, the court has a duty to show liberality toward pro se
litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should exercise
“extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before the adverse
party has been served and both parties (but particularly the plaintiff) have had an opportunity to
respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal citations omitted).
Generally, before the Court dismisses a pro se complaint or any part of the complaint sua
sponte, the Court should afford the plaintiff the opportunity to amend at least once; however,
leave to re-plead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer
& Co., 987 F.2d 129, 131 (2d Cir. 1993).
3
B.
Overview of the Original Complaint 2
Plaintiff’s original complaint alleged David J. Collins, Chief of Police of the Rome Police
Department, and two unknown police officers, “John Doee #1” and “John Doee #2” violated his
civil rights related to a traffic stop in the City of Rome. Dkt. No. 1.
Specifically, in relevant part, Plaintiff alleged he was “targeted” and “stopped” for
speeding on June 11, 2023, because he is a young “black mixed person.” Id. at 11. During the
traffic stop, the police officers learned Plaintiff was driving with a suspended license. Id. at 8.
The officers also questioned Plaintiff about “why” he was in Rome without a lawyer being
present and before reading Plaintiff his “Miranda” rights. Id. at 8-11. Plaintiff was “pulled” out
of his car and handcuffed, and subjected to a “pat down search.” Id. at 8. The female passenger
was also searched by the police officers and “something” was found on her person. Id. The
officers also searched the vehicle and Plaintiff’s possessions without a warrant or his consent.
Id. at 8-10. Plaintiff was taken to the Rome Police Department and the vehicle was impounded
and damaged. Id. at 10. Thereafter, Plaintiff was “charged” with “what” they found on the
passenger, which was “still” pending. Id. at 9-10.
The complaint was liberally construed to assert Fourth Amendment unlawful search and
seizure, racial profiling, false arrest, and excessive force claims and Fourteenth Amendment due
process claims against the named defendants. Dkt. No. 4.
Following review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C.
§ 1915A(b), the R&R recommended that each of Plaintiff’s claims be dismissed for failure to
2
Citations to Plaintiff’s submissions will refer to the pagination generated by CM/ECF, the
Court’s electronic filing system. Unless otherwise indicated, excerpts from the record are
reproduced exactly as they appear in the original and errors in spelling, punctuation, and
grammar have not been corrected.
4
state a claim upon which relief may be granted. Dkt. No. 4. In light of his pro se status, it was
recommended that Plaintiff be granted leave to amend to cure the deficiencies identified in the
R&R. Id. Plaintiff did not file objections to the R&R.
Upon de novo review, the R&R was accepted, and Plaintiff’s complaint was dismissed
with leave to amend. Dkt. No. 5. Plaintiff was afforded thirty days in which to file an amended
complaint that conforms with the specific instructions set forth in the R&R. Id.
C.
Overview of the Amended Complaint 3
The allegations in the amended complaint are substantially similar to, albeit less detailed
than, the allegations in the original complaint. Compare Dkt. No. 1 with Dkt. No. 9. Plaintiff’s
amended complaint reasserts claims against Defendants Collins, John Doe #1, and John Doe #2
arising out of the traffic stop in Rome, New York. 4 See generally Dkt. No. 9. Plaintiff also
names David A. Salle, Detective Shield 11201 as a Defendant. 5 Id. at 1. Defendants are sued in
3
The amended complaint is not signed by Plaintiff. See generally Dkt. No. 9. Rule 11(a) of the
Federal Rules of Civil Procedure states:
(a) Signature. Every pleading, written motion, and other paper must
be signed by at least one attorney of record in the attorney’s
name – or by a party personally if the party is unrepresented . . .
. The court must strike an unsigned paper unless the omission is
promptly corrected after being called to the attorney’s or party’s
attention.
Fed. R. Civ. P. 11(a). Therefore, Plaintiff must, within fourteen days, execute and file an
affidavit which states that he has read the amended complaint and the text of Federal Rule of
Civil Procedure 11. By executing the same, Plaintiff shall be declaring that he is representing to
the Court all of the representations delineated in Federal Rule of Civil Procedure 11(b) with
respect to the amended complaint. Plaintiff is advised that if he does not comply, this action may
be dismissed without prejudice. The Clerk is directed to serve a Rule 11 affidavit and a copy of
the amended complaint on Plaintiff.
4
The Clerk is directed to change the spelling from “Doee” to “Doe” on the Docket.
5
The Clerk is directed to add this individual as a Defendant on the Docket.
5
their official and individual capacities. Id. The following facts are set forth as alleged by
Plaintiff in the amended complaint.
On June 11, 2023, Plaintiff was pulled over by Rome police officers John Doe #1 and
John Doe #2. Id. They had no probable cause to “search/arrest” Plaintiff and his friend “but
they did so unlawfully.” Id. Plaintiff was “forced” and “pulled out” of his vehicle. Id. “They
found nothing” on Plaintiff but found “something” on his friend. Id. Plaintiff and his friend
were arrested and brought to the Rome Police Department. Id. at 1-2. Plaintiff’s car was towed.
Id. at 2. Plaintiff “feel[s]” “this was all because” he is a black male in a “nice car so they
assumed that i was a drug dealer or something.” Id. at 2. Plaintiff was also questioned about
why he was in Rome, where he was going, etc., before he was read his “Miranda” rights. Id.
Plaintiff was subjected to “racial profiling” when he was asked “where and how was i able to
affored the car i had if i ever worked in my life.” Id.
Plaintiff alleges Defendants John Doe #1, John Doe #2, Collins, and Salle “charge[d]”
him “with what they found on my friend C.P.W.2nd.” Id. Plaintiff states he has met all five
elements for his malicious prosecution claims:
(1) All four defendants John Doe, John Doe, Collins, David A.
Salle have caused me continued confinement and prosecution
(2) The original action was terminated in favor of my criminal
defense
(3) No probable cause supported my original arrest, continued
confinement, or prosecution
(4) All four defendants acted with malice. A lack of probable
cause created an inference of malice by David A. Salle,
Collins, John Doe, John Doe. Four R.P.D. officers falsifying
evidence is sufficient to show malice in front of a jury in
USDC, NDNY.
6
(5) I have sustained damages and Fourth Amendment violation
because of the defendants unlawful actions of malicious
prosecution without probable cause.
Id. at 2-3. Plaintiff “was not convicted of C.P.W.2nd [and] the charge was dismissed” in his
favor. Id. at 3.
Plaintiff also had to “pay extra money to get car out of inpound on a weekend.” Id. at 4.
The car was damaged (flat tire, coffee stains, and dents), he is missing a lot of his personal
papers and book bag, and they “went thru his phones unlawfully no-warrant to do so.” Id.
Based on the forgoing, Plaintiff claims he was falsely arrested and “hit with a criminal
possession of a weapon 2nd,” which was “found on someone else” during the traffic stop. Id. at
1. “They put the charge on me so i am claiming false arrest, discrimination, due process,
unreasonable search and seizure, malicious prosecution, excessive force.” Id.
D.
Analysis
Plaintiff seeks relief pursuant to Section 1983, which establishes a cause of action for
“‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws’
of the United States.” Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990). “Section 1983
itself creates no substantive rights, [but] . . . only a procedure for redress for the deprivation of
rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993).
1.
False Arrest
To prevail on a claim of false arrest under the Fourth Amendment, a plaintiff must allege
facts plausibly suggesting the following: (1) that the defendant intended to confine the plaintiff;
(2) that the plaintiff was conscious of the confinement; (3) that the plaintiff did not consent to the
confinement; and (4) that the confinement was not otherwise privileged. Ackerson v. City of
7
White Plains, 702 F.3d 15, 19 (2d Cir. 2012); Hernandez v. United States, 939 F.3d 191, 199 (2d
Cir. 2019).
At this stage of the proceeding, and mindful of the Second Circuit’s instruction that a pro
se plaintiff’s pleadings must be liberally construed, see, e.g., Sealed Plaintiff v. Sealed
Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the Court recommends Plaintiff’s Fourth
Amendment false arrest claims against Defendants John Doe #1 and John Doe #2 survive initial
review and require a response. The Court expresses no opinion as to whether these claims can
withstand a properly filed dispositive motion.
2.
Malicious Prosecution
To prevail on a malicious prosecution claim under the Fourth Amendment, a plaintiff
must allege facts plausibly suggesting the following: (1) the commencement or continuation of a
criminal proceeding against him; (2) the termination of the proceeding in his favor; (3) that the
state officials lacked probable cause; and (4) that the proceeding was instituted with malice.
Thompson v. Clark, 596 U.S. 36, 41 (2022); Mitchell v. City of New York, 841 F.3d 72, 79 (2d
Cir. 2016) (citing Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003); Colon v. City of New
York, 60 N.Y.2d 78, 82 (1983)).
At this stage of the proceeding, and mindful of the Second Circuit’s instruction that a pro
se plaintiff’s pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191,
the Court recommends Plaintiff’s Fourth Amendment malicious prosecution claims against
Defendants Collins, Salle, John Doe #1, and John Doe #2 survive initial review and require a
response. The Court expresses no opinion as to whether these claims can withstand a properly
filed dispositive motion.
8
3.
Remaining Claims
Liberally construed, Plaintiff’s amended complaint repleads Fourth and Fourteenth
Amendment unreasonable search and seizure, excessive force, discrimination, due process, and
“official capacity” claims related to the traffic stop in Rome, New York. See generally Dkt. No.
9. The law related to these claims was discussed at length in the R&R. See Dkt. No. 4. Even
when construed with the utmost of special lenience, Plaintiff’s amended complaint has not cured
the deficiencies identified in the R&R. See generally Dkt. No. 4.
Accordingly, the Court recommends that these claims be dismissed without prejudice
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) for failure to state a claim
upon which relief may be granted.
III.
CONCLUSION
WHEREFORE, it is hereby
ORDERED that the Clerk provide the Superintendent of the facility, designated by
Plaintiff as his current location, with a copy of Plaintiff’s inmate authorization (Dkt. No. 3), and
notify the official that this action has been filed and that Plaintiff is required to pay the Northern
District of New York the statutory filing fee of $350.00 in installments, over time, pursuant to 28
U.S.C. § 1915; and it is further
ORDERED that the Clerk provide a copy of Plaintiff’s inmate authorization (Dkt. No. 3)
to the Financial Deputy of the Clerk’s Office; and it is further
ORDERED that the Clerk update the docket to (1) add David A. Salle, Detective, Shield
11201 as a Defendant; and (2) correct the spelling of the John “Doe” Defendants; and it is further
9
ORDERED that Plaintiff must, within fourteen (14) days, execute and file an
affidavit pursuant to Federal Rule of Civil Procedure 11 and his failure to do so may result
in dismissal of this action without prejudice; and it is further
RECOMMENDED that upon receipt of Plaintiff’s executed Rule 11 affidavit the Clerk
be directed be attach the same to Plaintiff’s amended complaint; and it is further
RECOMMENDED that Plaintiff’s amended complaint (Dkt. No. 9) be ACCEPTED for
filling to the extent that it asserts: (1) Fourth Amendment false arrest claims against Defendants
John Doe #1 and John Doe #2; and (2) Fourth Amendment malicious prosecution claims against
Defendants Collins, Salle, John Doe #1, and John Doe #2; and it is further
RECOMMENDED that, except as to the foregoing, the remaining claims asserted in the
amended complaint be DISMISSED without prejudice for failure to state a claim upon which
relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1);
and it is further
ORDERED that the Clerk serve a copy of the Order and Report-Recommendation on
Plaintiff, along with a copy of the unpublished decision cited herein in accordance with Lebron
v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further
ORDERED that the Clerk serve a Rule 11 affidavit and a copy of the amended
complaint (Dkt. No. 9) on Plaintiff.
Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has fourteen days within which to file written
objections to the foregoing report. 6 Such objections shall be filed with the Clerk of the Court.
6
If you are proceeding pro se and are served with this Order and Report-Recommendation by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date the Order and Report-Recommendation 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
10
FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. 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)); 28 U.S.C. § 636(b)(1)
(Supp. 2013); Fed. R. Civ. P. 72, 6(a).
IT IS SO ORDERED.
Dated: October 25, 2024
Syracuse, New York
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).
11
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
WILLIE THOMAS GOSIER,
Plaintiff,
6:23-cv-1485
(DNH/TWD)
v.
DAVID J. COLLINS, et al.,
Defendants.
__________________________________________
AFFIDAVIT OF PLAINTIFF
STATE OF NEW YORK:
COUNTY OF ___________________ :ss.
Willie Thomas Gosier, being duly sworn, deposes and states:
1. I am the plaintiff in Gossier v. Collins et al., No. 6:23-CV-1485 and submit this
affidavit in support of my amended complaint.
2. On or about May 23, 2024, I completed the amended complaint in this matter and
thereafter forwarded it to the United States District Court for the Northern District of New York.
3. The information set forth in the amended complaint was true and correct in May 2024
and has not changed in any material respect since that time.
4. I have read the text of Rule 11 of the Federal Rules of Civil Procedure and the
traverse. By executing (signing) this affidavit, I hereby represent to the Court all of the
representations set forth in Rule 11(b) with respect to the amended complaint that I filed herein.
______________________________________
Willie Thomas Gosier
Sworn to and subscribed before
me this ________ day of ____________, 2024.
_______________________________________
Notary Public
Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
2010 WL 5185047
2010 WL 5185047
Only the Westlaw citation
is currently available.
United States District Court,
S.D. New York.
David J. CASH, Plaintiff,
v.
BERNSTEIN, MD, Defendant.
No. 09 Civ.1922(BSJ)(HBP).
|
Oct. 26, 2010.
REPORT AND RECOMMENDATION 1
PITMAN, United States Magistrate Judge.
*1 TO THE HONORABLE BARBARA S.
JONES, United States District Judge,
I. Introduction
By notice of motion dated March 4, 2010
(Docket Item 11), defendant moves pursuant
to 28 U.S.C. § 1915(g) to revoke plaintiff's in
forma pauperis (“IFP”) status on the ground
that plaintiff has previously had at least three
Section 1983 actions dismissed as frivolous,
malicious or failing to state a claim upon
which relief could be granted, and has not
shown that he is in imminent danger of serious
physical injury. Defendant further seeks an
order directing that the action be dismissed
unless plaintiff pays the full filing fee within
thirty (30) days. For the reasons set forth below,
I respectfully recommend that defendant's
motion be granted.
II. Facts
Plaintiff, a sentenced inmate in the custody of
the New York State Department of Correctional
Services, commenced this action on or about
January 12, 2009 by submitting his complaint
to the Court's Pro Se office. Plaintiff alleges,
in pertinent part, that he has “a non-healing
ulcer that is gane green [sic ]” and that
defendant Bernstein “did not want to treat the
ulcer right” (Complaint, dated March 3, 3009
(Docket Item 2) (“Compl.”), at 3).
The action was originally commenced against
two defendants—Dr. Bernstein and Dr.
Finkelstein. The action was dismissed as to Dr.
Finkelstein because the complaint contained
no allegations whatsoever concerning Dr.
Finkelstein (Order dated February 18, 2010
(Docket Item 9)).
On March 4, 2010, the sole remaining
defendant—Dr. Bernstein—filed the current
motion. Plaintiff failed to submit a response.
Accordingly, on August 20, 2010, I issued
an Order advising plaintiff that if he wished
to oppose the motion, he must submit his
opposition by September 15, 2010 and that
after that date I would consider the motion
fully submitted and ripe for decision (Order
dated August 20, 2010 (Docket Item 15)).
The only submission plaintiff has made in
response to my Order is a multi-part form
issued by the New York State Department of
Correctional Services entitled “Disbursement
or Refund Request.” 2 By this form, plaintiff
appears to request that the New York State
Department of Correctional Services pay the
filing fee for this action. The form is marked
“Denied.”
© 2024 Thomson Reuters. No claim to original U.S. Government Works.
1
Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
2010 WL 5185047
III. Analysis
28 U.S.C. § 1915 permits an indigent litigant
to commence an action in a federal court
without prepayment of the filing fee that would
ordinarily be charged. Although an indigent,
incarcerated individual need not prepay the
filing fee at the time at the time of filing, he
must subsequently pay the fee, to the extent he
is able to do so, through periodic withdrawals
from his inmate accounts. 28 U.S.C. § 1915(b);
Harris v. City of New York, 607 F.3d 18,
21 (2d Cir.2010). To prevent abuse of the
judicial system by inmates, paragraph (g) of
this provision denies incarcerated individuals
the right to proceed without prepayment of the
filing fee if they have repeatedly filed meritless
actions, unless such an individual shows that
he or she is in imminent danger of serious
physical injury. See Ortiz v. McBride, 380 F.3d
649, 658 (2d Cir.2004) (“[T]he purpose of the
PLRA ... was plainly to curtail what Congress
perceived to be inmate abuses of the judicial
process.”); Nicholas v. Tucker, 114 F.3d 17,
19 (2d Cir.1997). Specifically, paragraph (g)
provides:
*2 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).
If an inmate plaintiff seeks to avoid prepayment
of the filing fee by alleging imminent danger of
serious physical injury, there must be a nexus
between the serious physical injury asserted
and the claims alleged. Pettus v. Morgenthau,
554 F.3d 293, 298 (2d Cir.2009).
Section 1915(g) clearly prevents plaintiff from
proceeding in this action without prepayment
of the filing fee. The memorandum submitted
by defendant establishes that plaintiff has had
his IFP status revoked on at least four prior
occasions as a result of his repeatedly filing
meritless actions.
• In 2005, plaintiff commenced an action in
the United States District Court for the
Northern District of New York seeking to
have his infected leg amputated. Nelson 3
v. Lee, No. 9:05–CV–1096 (NAM)(DEP),
2007 WL 4333776 (N.D.N.Y. Dec. 5,
2007). In that matter, the Honorable
Norman A. Mordue, Chief United States
District Judge, accepted and adopted
the Report and Recommendation of the
Honorable David E. Peebles, United
States Magistrate Judge, that plaintiff had
brought three or more prior actions that
had been dismissed for failure to state a
claim and that plaintiff's IFP status should,
© 2024 Thomson Reuters. No claim to original U.S. Government Works.
2
Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
2010 WL 5185047
therefore, be revoked. 2007 WL 4333776
at *1–*2.
• In Nelson v. Nesmith, No. 9:06–CV–
1177 (TJM)(DEP), 2008 WL 3836387
(N.D.N.Y. Aug. 13, 2008), plaintiff again
filed an action concerning the medical
care he was receiving for his left leg. The
Honorable Thomas J. McAvoy, United
States District Judge, accepted the Report
and Recommendation of Magistrate Judge
Peebles, and revoked plaintiff's IFP status
and dismissed the action on the ground
that plaintiff had previously commenced
at least three actions that had been
dismissed on the merits. 2008 WL
3836387 at *1, *7.
• In Nelson v. Spitzer, No. 9:07–CV–
1241 (TJM)(RFT), 2008 WL 268215
(N.D.N.Y. Jan. 29, 2008), Judge
McAvoy again revoked plaintiff's
IFP status on the ground that plaintiff
had commenced three or more
actions that constituted “strikes”
under Section 1915(g) and had not
shown an imminent threat of serious
physical injury. 2008 WL 268215 at
*1–*2.
• Finally, in Nelson v. Chang, No.
08–CV–1261 (KAM)(LB), 2009 WL
367576 (E.D.N.Y. Feb. 10, 2009),
the Honorable Kiyo A. Matsumoto,
United States District Judge, also
found, based on the cases discussed
above, that plaintiff had exhausted
the three strikes permitted by Section
1915(g) and could not proceed IFP in
the absence of a demonstration of an
imminent threat of serious physical
injury. 2009 WL 367576 at *2–*3.
*3 As defendant candidly admits, there is
one case in which plaintiff's leg infection was
found to support a finding of an imminent threat
of serious physical injury sufficient to come
within the exception to Section 1915(g). Nelson
v. Scoggy, No. 9:06–CV–1146 (NAM)(DRH),
2008 WL 4401874 at *2 (N.D.N.Y. Sept.
24, 2008). Nevertheless, summary judgment
was subsequently granted for defendants in
that case, and the complaint was dismissed.
Judge Mordue concluded that there was no
genuine issue of fact that plaintiff had received
adequate medical care for his leg wound and
that the failure of the leg to heal was the
result of plaintiff's own acts of self-mutilation
and interference with the treatment provided.
Nelson v. Scoggy, No. 9:06–CV–1146 (NAM)
(DRH), 2009 WL 5216955 at *3–*4 (N.D.N.Y.
Dec. 30, 2009). 4
In light of the foregoing, there can be no
reasonable dispute that plaintiff has exceeded
the three “strikes” allowed by Section 1915(g)
and that he cannot, therefore, proceed here
without prepaying the filing fee unless he
demonstrates an imminent threat of serious
physical injury. Plaintiff has declined to
attempt to make this showing in response to
defendant's motion, and the only suggestion
in the record of serious physical injury is
the bare statement in the complaint that
plaintiff “need[s] to go back to a wound
speci [a]list before the gane green [sic ] kills
[him]” (Compl. at 5). “However, unsupported,
vague, self-serving, conclusory speculation is
not sufficient to show that Plaintiff is, in fact,
in imminent danger of serious physical harm.”
Merriweather v. Reynolds, 586 F.Supp.2d 548,
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3
Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
2010 WL 5185047
552 (D.S.C.2008), citing Ciarpaglini v. Saini,
352 F.3d 328, 330 (7th Cir.2003) and White
v. Colorado, 157 F.3d 1226, 1231–32 (10th
Cir.1998); see also Martin v. Shelton, 319 F.3d
1048, 1050 (8th Cir.2003) (imminent danger
exception to Section 1915(g) requires “specific
fact allegations of ongoing serious physical
injury, or of a pattern of misconduct evidencing
the likelihood of imminent serious physical
injury”). Given the plaintiff's history, as set
forth in the cases described above, I conclude
that this vague statement is insufficient to
support a finding that plaintiff is in imminent
danger of serious physical injury. 5
IV. Conclusion
Accordingly, for all the foregoing reasons,
I find that plaintiff has had three or more
prior actions dismissed as being frivolous,
malicious or failing to state a claim and that
plaintiff's in forma pauperis status should,
therfore, be revoked. If your Honor accepts this
recommendation, I further recommend that the
action be dismissed unless plaintiff pays the
filing fee in full within thirty (30) days of your
Honor's final resolution of this motion.
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule
72(b) of the Federal Rules of Civil Procedure,
the parties shall have fourteen (14) days from
receipt of this Report to file written objections.
See also Fed.R.Civ.P. 6(a). Such objections
(and responses thereto) shall be filed with
the Clerk of the Court, with courtesy copies
delivered to the Chambers of the Honorable
Barbara S. Jones, United States District Judge,
500 Pearl Street, Room 1920, and to the
Chambers of the undersigned, 500 Pearl Street,
Room 750, New York, New York 10007. Any
requests for an extension of time for filing
objections must be directed to Judge Jones.
FAILURE TO OBJECT WITHIN FOURTEEN
(14) DAYS WILL RESULT IN A WAIVER
OF OBJECTIONS AND WILL PRECLUDE
APPELLATE REVIEW. Thomas v. Arn, 474
U.S. 140, 155 (1985); United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir.1997); IUE
AFL–CIO Pension Fund v. Herrmann, 9 F.3d
1049, 1054 (2d Cir.1993); Frank v. Johnson,
968 F.2d 298, 300 (2d Cir.1992); Wesolek
v. Canadair Ltd., 838 F.2d 55, 57–59 (2d
Cir.1988); McCarthy v. Manson, 714 F.2d 234,
237–38 (2d Cir.1983).
All Citations
V. OBJECTIONS
Not Reported in F.Supp.2d, 2010 WL 5185047
Footnotes
1
At the time the action was originally filed, the Honorable Leonard B. Sand, United
States District Judge, granted plaintiff's application for in forma pauperis status
based on plaintiff's ex parte submission (Docket Item 1). Although the present
application seeking to revoke plaintiff's in forma pauperis status is non-dispositive,
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4
Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
2010 WL 5185047
I address it by way of a report and recommendation to eliminate any appearance of
a conflict between the decision of a district judge and that of a magistrate judge.
2
Plaintiff sent this form directly to my chambers, and it has not been docketed by
the Clerk of the Court. The form will be docketed at the time this Report and
Recommendation is issued.
3
It appears that plaintiff uses the names David J. Cash and Dennis Nelson
interchangeably. In his complaint in this matter, plaintiff states that the Departmental
Identification Number, or DIN, assigned to him by the New York State Department of
Correctional Services (“DOCS”) is 94–B–0694 (Compl. at 7). DOCS inmate account
records submitted by plaintiff in connection with his application for IFP status indicate
that DIN 94–B–0694 is assigned to Dennis Nelson. In addition, the DOCS form
described in footnote two bears the docket number of this action, but is signed in
the name of Dennis Nelson and was sent in an envelope identifying the sender
as Dennis Nelson. A subsequent action has been filed in this Court in which the
plaintiff identifies himself as Dennis Nelson but lists his DIN as 94–B–0694, the same
DIN used by plaintiff here. Finally, plaintiff has submitted nothing to controvert the
assertion in defendant's papers that David Cash and Dennis Nelson are the same
person. In light of all these facts, I conclude that David Cash and Dennis Nelson are
both names used by plaintiff.
4
Although the form complaint utilized by plaintiff expressly asks about prior actions
involving the same facts, plaintiff disclosed only the Scoggy action and expressly
denied the existence of any other actions relating to his imprisonment (Compl. at 6).
5
Plaintiff has sent me several letters describing his wound and its symptoms in detail,
and I have no doubt that the wound is serious. However, in granting summary
judgment dismissing an action last year based on the same allegations, Judge
Mordue of the Northern District found that there was no genuine issue of fact that
plaintiff's own conduct was responsible for the ineffectiveness of the treatment he
was provided:
Furthermore, to the extent that Nelson's medical treatment was delayed, much of
the delay was due to his own refusal to cooperate with medical staff and his selfmutilations. Nelson's actions to thwart the medical treatment of his wound cannot
be construed as interference or indifference by anyone else.... [T]he medical
treatment Nelson received complied with constitutional guarantees as it was
appropriate, timely, and delayed only by Nelson's own actions.
Nelson v. Scoggy, supra, 2009 WL 5216955 at *4.
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5
Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
2010 WL 5185047
Given plaintiff's total failure to respond to the pending motion and his failure to
even deny that he is actively thwarting treatment of his wound, it would be sheer
speculation for me to conclude that he is in imminent danger of a serious injury as
a result of defendant's conduct.
End of Document
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6
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