Pettus v. Richards et al

Filing 47

DECISION AND ORDER: ORDERED, that Plaintiff's 1 Complaint is DISMISSED with prejudice. ORDERED, that pursuant to 28 U.S.C. Section 1915(a)(3), any appeal from this matter would not be taken in good faith. Signed by Senior Judge Lawrence E. Kahn on 4/14/09. (Order served on Plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK JAMES PETTUS, Plaintiff, v. CAPTAIN RICHARDS, Cayuga Correctional Facility, et al., Defendants. ________________________________________ APPEARANCES JAMES PETTUS 03-R-3597 Plaintiff, pro se HON. ANDREW M. CUOMO New York State Attorney General Attorney for Defendants LAWRENCE E. KAHN United States District Judge SENTA B. SIUDA, Esq. Assistant Attorney General OF COUNSEL: 9:06-CV-0030 (LEK/DRH)

DECISION AND ORDER Plaintiff James Pettus commenced this action by filing a pro se complaint, and an application to proceed in forma pauperis, on January 10, 2006. Dkt. Nos. 1, 2. By Order of this Court filed on April 18, 2006, Plaintiff's in forma pauperis application was granted and service of the complaint was directed. Dkt. No. 4. On October 30, 2007, Defendants filed a motion pursuant to 28 U.S.C. § 1915(g) to revoke Plaintiff's in forma pauperis status because Plaintiff had filed numerous prior frivolous lawsuits. Dkt. No. 25. Plaintiff opposed the motion and made a cross-motion for summary judgment. Dkt. No. 30. By Order of this Court filed on September 18, 2008, Plaintiff's cross-motion was denied and Defendants' motion to revoke Plaintiff's in

forma pauperis status was granted. Dkt. No. 42. Plaintiff's complaint was dismissed without prejudice as to all Defendants and all claims unless Plaintiff paid the full filing fee of $250.00 within thirty days of the filing date of the September 18, 2008 Order. Id. On October 10, 2008, Plaintiff appealed from the September 18, 2008 Order to the United States Court of Appeals for the Second Circuit. Dkt. No. 43. By Order dated February 27, 2009, issued as a Mandate on April 3, 2009, the Second Circuit Court of Appeals dismissed Plaintiff's appeal and directed that "upon receipt of this Court's mandate, the district court shall dismiss Appellant's case with prejudice and without affording him the opportunity to pay the required filing fee." Dkt. No. 46. WHEREFORE, in accordance with the Mandate of the United States Court of Appeals for the Second Circuit, it is hereby ORDERED, that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED with prejudice; and it is further ORDERED, that pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this matter would not be taken in good faith; and it is further ORDERED, that the Clerk serve a copy of this Order on the parties in accordance with the Local Rules. IT IS SO ORDERED.

DATED:

April 14, 2009 Albany, New York

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