Jones v. Smith et al

Filing 85

MEMORANDUM-DECISION AND ORDER: ORDERED, that Magistrate Judge Andrew T. Baxter's December 6, 2011 Report-Recommendation and Order (Dkt. No. 83 ) is ADOPTED in its entirety. ORDERED, that defendants' motion to dismiss (Dkt. No. 75 ) is GR ANTED. ORDERED, that Jones's IFP status is REVOKED, and this case is DISMISSED unless Jones pays the $350.00 filing fee within forty-five (45) days of the date of this Order. ORDERED, that if Jones fails to pay the $350.00 filing fee within forty-five (45) days of the date of this Order, the Clerk shall enter judgment for defendants and close this case. Signed by Chief Judge Gary L. Sharpe on 1/23/12. (Attachments: # 1 Report-Recommendation and Order dated 12/6/11) (served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
MICHAEL JONES,
Plaintiff,

9:09-cv-1058
(GLS/ATB)

v.
JOSEPH SMITH et al.,
Defendants.
____________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Michael Jones
Pro Se
90-A-5292
Sing Sing Correctional Facility
354 Hunter Street
Ossining, NY 10562
FOR THE DEFENDANTS
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Albany Office
The Capitol
Albany, NY 12224

DAVID L. COCHRAN
Assistant Attorney General

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Michael Jones brings this action under 42 U.S.C. §

1983, alleging his constitutional rights were violated by defendants. (See
Compl., Dkt. No. 1.) In a Report-Recommendation and Order (R&R) filed
December 6, 2011, Magistrate Judge Andrew T. Baxter recommended that
defendants’ motion to revoke Jones’s IFP status be granted pursuant to 28
U.S.C. § 1915(g).1 (See generally R&R, Dkt. No. 83.) Pending are Jones’s
objections to the R&R. (See Dkt. No. 84.) For the reasons that follow, the
R&R is adopted in its entirety.
II. Standard of Review
Before entering final judgment, this court routinely reviews all report
and recommendation orders in cases it has referred to a magistrate judge.
If a party has objected to specific elements of the magistrate judge’s
findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No.
04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those
cases where no party has filed an objection, or only a vague or general
objection has been filed, this court reviews the findings and
recommendations of the magistrate judge for clear error. See id.

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The Clerk is directed to append the R&R to this decision, and familiarity therewith is
presumed.

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III. Discussion
Jones objects to Judge Baxter’s conclusion that he had, at a
minimum, three strikes prior to commencing this action. (See Dkt. No. 84
at 1-4.) Specifically, Jones first claims the PACER docket sheet submitted
by defendants, and considered by Judge Baxter, was “inadequate to
substantiate that [his] 1993 action . . . was dismissed pursuant to 28 U.S.C.
§ 1915(g).” (See id. at 1.) And second, that Judge Baxter’s computation of
his third through seventh strikes—which was based in part on Judge
Baxter’s conclusion that “habeas petitions that are dismissed either as
frivolous or for failure to state a claim . . . may appropriately be treated as
‘strikes,’” (R&R at 12-13)—was incorrect under Second Circuit precedent.
(See Dkt. No. 84 at 3.) The court disagrees with both assertions.
Jones’s first objection is meritless. It is well-settled that courts are
permitted to consider a docket sheet, where, as here, it articulates the
basis for dismissal. (See Dkt. No. 75, Attach. 2 at 3); see Harris v. City of
N.Y., 607 F.3d 18, 23-24 (2d Cir. 2010). Furthermore, a dismissal under
former section 28 U.S.C. § 1915(d)—the stated basis for the dismissal on
the 1993 docket sheet—was clearly a dismissal for “frivolousness.” (See
Dkt. No. 75, Attach. 2 at 3); see also 28 U.S.C.A. § 1915(d) (West 1995)
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(stating the court “may dismiss the case if . . . the action is frivolous or
malicious.”) Thus, Jones’s claim that his 1993 action should not be
considered as a strike is rejected.
Moreover, Jones’s argument regarding applicability of habeas
petitions to the three strikes provision is irrelevant as Judge Baxter’s
decision did not rest on that ground alone. (See Dkt. No. 84 at 3-4.) Judge
Baxter explicitly stated that “[e]ven if the court did not count the dismissal of
the [habeas] petition itself as a strike,” Jones’s subsequent appeals would
count as two additional strikes. (See R&R at 15-16.) It follows that Jones’s
“objection” to an alternative basis for dismissal is insufficient to require a de
novo review.
Having addressed Jones’s specific objection de novo, and otherwise
finding no clear error in the R&R, the court accepts and adopts Judge
Baxter’s R&R in its entirety.
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Andrew T. Baxter’s December 6,
2011 Report-Recommendation and Order (Dkt. No. 83) is ADOPTED in its
entirety; and it is further
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ORDERED that defendants’ motion to dismiss (Dkt. No. 75) is
GRANTED; and it is further
ORDERED that Jones’s IFP status is REVOKED, and this case is
DISMISSED unless Jones pays the $350.00 filing fee within forty-five (45)
days of the date of this Order; and it is further
ORDERED that if Jones fails to pay the $350.00 filing fee within fortyfive (45) days of the date of this Order, the Clerk shall enter judgment for
defendants and close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties by mail and certified mail.
IT IS SO ORDERED.
January 23, 2012
Albany, New York

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