Walker v. Cuomo et al
DECISION AND ORDER: ORDERED that plaintiff's motion for reconsideration of the July Order (Dkt. No. 5 ) is DENIED. ORDERED that plaintiff is afforded a final opportunity to pay the filing fee of four hundred dollars ($400.00) in full if he wishes to avoid dismissal of this action. ORDERED that upon plaintiffs compliance with this Decision and Order, the Clerk shall return the file to this Court for review of the complaint in accordance with 28 U.S.C. § 1915A. ORDERED tha t if plaintiff fails to pay the filing fee in full within thirty (30) days of the filing date of this Decision and Order, the Clerk is directed to enter judgment dismissing this action, without prejudice, without further order of this Court. Signed by Senior Judge Thomas J. McAvoy on 8/11/17. (served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
HON. ANDREW M. CUOMO; et al,
Plaintiff, pro se
Bare Hill Correctional Facility
Caller Box 20
Malone, NY 12953
THOMAS J. McAVOY
Senior United States District Judge
DECISION and ORDER
In a Decision and Order filed July 6, 2017, this Court denied the application f or leave
to proceed with this action in forma pauperis filed by pro se plaintiff Carlton Walker pursuant
to the "three strikes" rule of 28 U.S.C. § 1915(g) ("Section 1915(g)"). Dkt. No. 4 ("July
Order"). Plaintiff was afforded thirty (30) days in which to pay the statutory filing fee of four
hundred dollars in full if he wished to avoid dismissal of this action. Id. at 8.
Plaintiff has not paid the filing fee. Plaintiff has filed a motion seeking reconsideration
of the July Order. Dkt. No. 5.
A court may justifiably reconsider its previous ruling if: (1) there is an intervening
change in the controlling law; (2) new evidence not previously available comes to light or (3)
it becomes necessary to remedy a clear error of law or to prevent manifest injustice.
Delaney v. Selsky, 899 F. Supp. 923, 925 (N.D.N.Y. 1995) (McAvoy, C.J.) (citing Doe v. New
York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir.)). "In order to prevail on a motion
for reconsideration, the movant must satisfy stringent requirements." Maye v. New York, No.
10-CV-1260 (GLS/DRH), 2011 WL 4566290, at *2 n.6 (N.D.N.Y. Sept. 29, 2011) (citation
Generally, motions for reconsideration are not granted unless "the moving party can
point to controlling decisions or data that the court overlooked – matters, in other words, that
might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). A motion to reconsider "is not favored and is
properly granted only upon a showing of exceptional circumstances." Marrero Pichardo v.
Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004). Reconsideration should be g ranted where
necessary to correct for "clear error" or to "prevent manifest injustice." Munafo v. Metro.
Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004).
By his motion, plaintiff seeks reconsideration of the Court's determination that he has
at least three "strikes" for purposes of Section 1915(g) and, also, of the Court's finding that
the "imminent danger" exception is not applicable here. See Dkt. No. 5. The Court has
reviewed plaintiff's motion thoroughly and with due regard for his status as a pro se litigant.
Determination of "Strikes"
After review of plaintiff's litigation history, the Court identified seven actions and
appeals filed by plaintiff while incarcerated which were dismissed on the grounds that they
were frivolous or malicious, or that they failed to state a claim upon which relief could be
granted. July Order at 3-4.1 The actions and appeals identified as "strikes" are as follows:
Strike 1: Heron, et al. v. US Dep't of Justice, No. 6:90-CV-0374 (N.D.N.Y. Dec.
31, 1991) (Order granting defendants' motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(1) and 12(b)(6))2
Strike 2: Walker v. Coughlin,3 No. 1:92-CV-1529 (S.D.N.Y. Apr. 14, 1993)
(Order granting defendants' motion to dismiss as time-barred and for failure to
state a claim)
Strike 3: Walker v. Cuomo, No. 7:93-CV-5223 (S.D.N.Y. July 28, 1993) (Order
dismissing complaint pursuant to 28 U.S.C. § 1915(d)) 4
Strike 4: Walker v. Leahy, No. 1:92-CV-5413 (E.D.N.Y. May 12, 1994)
(Memorandum and Order granting defendants' motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6) and noting that further harassment of the court by
plaintiff's frivolous filings "will not be tolerated")
Strike 5: Walker v. Kaye, No. 1:05-CV-1884 (S.D.N.Y. Feb. 4, 2005) (Order
dismissing complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii))
Strike 6: Walker v. Cuomo, No. 1:12-CV-4512 (E.D.N.Y. Oct. 1, 2012)
(Memorandum and Order dismissing amended complaint pursuant to 28 U.S.C.
§ 1915A for failure to state a claim)
Strike 7: Walker v. Cuomo, No. 12-4398 (2d Cir. Jan. 28, 2013) (Order
dismissing appeal in Walker v. Cuomo, No. 1:12-CV-4512, "because it lacks an
arguable basis in law or fact")
July Order at 3.
The question of whether the dismissal of a prior action qualifies as a strike for purposes of section
1915(g) is a matter of statutory interpretation and, as such, a question for the court. Tafari v. Hues, 473 F.3d
440, 442-43 (2d Cir. 2007). Insofar as plaintiff objects to the Court's independent review of his litigation history in
determining his eligibility for in forma pauperis status, see Dkt. No. 5 at 9-11, that argument lacks merit.
Plaintiff was one of ten named plaintiffs in this action.
The case was mistakenly identified in the July Order as Walker v. Leahy. July Order at 3.
The PLRA amended and recodified Section 1915(d) as Section 1915(e)(2).
Plaintiff contends that cases "filed and decided long before there was such thing as a
'three strike', which would have served to give plaintiff a warning," may not be designated as
"strikes" for purposes of Section 1915(g). Dkt. No. 5 at 12. The Second Circuit held to the
contrary in Welch v. Galie, 207 F.3d 130, 132 (2d Cir. 2000) (per curiam), stating: "We agree
with our sister circuits' analyses and, accordingly, join those circuits in holding that pre-§
1915(g) dismissals for frivolousness, maliciousness, or failure to state a claim count as
'strikes' for purposes of § 1915(g)." Id. at 132; see also Ibrahim v. District of Columbia, 208
F.3d 1032, 1036 (D.C. Cir. 2000) ("we join the eight other circuits that have considered the
question and concluded that cases dismissed prior to the effective date of the PLRA count as
'strikes' under § 1915(g)"). As a result, plaintiff's objection to the designation of four cases
filed prior to the effective date of Section 1915(g) (Strikes 1-4) as "strikes," see Dkt. No. 5 at
12-13, lacks merit and affords no basis for reconsideration of the July Order.
Plaintiff objects to the Court's determination that the dismissals in three of his cases
(Strikes 2, 3, 5) were "strikes," stating that he has "no recollection of those cases." Dkt. No.
5 at 13. While plaintiff's lack of recall with respect to the nature of these actions or the
disposition thereof affords no basis for reconsideration of the July Order, the Court has
nevertheless reviewed the dockets for these actions and finds that they were dismissed on
grounds which constitute "strikes" for purposes of Section 1915(g).
Plaintiff objects generally to the designation of his prior cases and appeals as strikes
because he believes that they were wrongly decided. Dkt. No. 5 at 13-17. 5 However,
Despite his lack of memory of three of these cases (Strikes 2, 3, 5), plaintiff contends that the
Southern District of New York lacked subject jurisdiction over these actions. Dkt. No. 5 at 13. Plaintiff further
argues that the Second Circuit's decision in Newton v. City of New York, 779 F.3d 140 (2d Cir. 2015) (finding that
city's inadequate evidence management systems deprived exonerated plaintiff of his right to due process)
Section 1915(g) does not direct courts to review the merits of a prior dismissal, to ask
whether the case would have been addressed by them in a different manner, or whether
subsequent case law might lead to a different result were the case to be filed today. Rather,
"all that matters for the purpose of counting strikes is what the earlier court actually did, not
what it ought to have done." Thompson v. Drug Enforcement Admin., 492 F.3d 428, 438-39
(D.C. Cir. 2007) ("Finally, it bears repeating that IFP motions present no occasion for
relitigating final judgments."); see also Jones v. Moorjani, No. 13 CIV. 2247, 2013 W L
6569703, at *8 n.16 (S.D.N.Y. Dec. 13, 2013), report and recommendation adopted, No. 13
CIV. 2247, 2014 WL 351628 (S.D.N.Y. Jan. 31, 2014) (citing Thompson).
Plaintiff objects to the designation of Walker v. Cuomo, No. 1:12-CV-4512 (E.D.N.Y.
Oct. 1, 2012) (Strike 6) as a strike, because he paid the f iling fee for that action. Dkt. No. 5
at 17-18.6 While the Second Circuit has not directly addressed this issue, five other courts of
appeals have determined that a prisoner may accrue strikes for purposes of Section 1915(g)
in past actions regardless of whether he proceeded in forma pauperis or prepaid the filing
fee. See Belanus v. Clark, 796 F.3d 1021, 1028-30 (9 th Cir. 2015); Byrd v. Shannon, 715
F.3d 117, 123 (3d Cir. 2013); Burghart v. Corr. Corp. of Am., 350 Fed. App'x 278, 279 (10th
"invalidates" the dismissals of his prior actions. See id. at 14-16.
Although plaintiff contends that he also paid the Second Circuit's filing fee in connection with his
appeal in Walker v. Cuomo, No. 12-4398, the docket sheet does not so indicate. Moreover, the Second Circuit
disposed of the appeal as follows:
Appellant, pro se, moves for leave to proceed in forma pauperis. Upon due
consideration, it is hereby ORDERED that the motion is DENIED and the appeal
is DISMISSED because it lacks an arguable basis in law or fact. See 28 U.S.C.
§ 1915(e); Neitzke v. Williams, 490 U.S. 319, 325 (1989) (defining when an
action lacks an arguable basis in law or fact).
Id., Dkt. No. 48 (Order dated Jan. 28, 2013 issued as a Mandate on Apr. 26, 2013).
Cir. 2009); Hyland v. Clinton, 3 Fed. App'x 478, 479 (6th Cir. 2001); Duvall v. Miller, 122 F.3d
489, 490 (7th Cir. 1997). As plaintiff correctly notes in his motion, at least one court in the
Southern District of New York has concluded that "strikes may not be assigned under §
1915(g) in actions where the prisoner fully prepaid the filing fee." Jones v. Moorjani, No. 13
CIV. 2247, 2013 WL 6569703, at *8 (S.D.N.Y. Dec. 13, 2013), report and recommendation
adopted, No. 13 CIV. 2247, 2014 W L 351628 (S.D.N.Y. Jan. 31, 2014). Here, because it is
clear that plaintiff earned at least six other "strikes" prior to commencing this action, the Court
need not decide whether Walker v. Cuomo (Strike 6) was properly designated a "strike" in
the July Order.
As a result, plaintiff's motion for reconsideration of the Court's determination that he
had acquired at least three "strikes" when he filed this action is denied.
The "Imminent Danger" Exception
Plaintiff also seeks reconsideration of the July Order insofar as the Court concluded
that the "imminent danger" exception contained in the final phrase of Section 1915(g) is not
applicable in this action. See Dkt. No. 5 at 1-9. The crux of plaintiff's argument is that "[t]he
continuous imprisonment of the plaintiff in the Bare Hill Correctional Facility, while
overwhelming facts and documentary evidence establishing his innocence, which have never
been opposed, contradicted or refuted, constitute[s] cruel and unusual punishm ent." Dkt.
No. 5 at 2. Plaintiff contends that he was wrongfully convicted and maintains that the named
defendants (New York Governor Cuomo and six justices of the New York Court of Appeals)
have improperly refused to "provide a forum for the vindication of the plaintiff's rights violated
by State and local officials acting under color of State law." Id. Plaintiff maintains that these
allegations are sufficient to make the required showing of "imminent danger." Id.
As discussed in the July Order, the "imminent danger" exception to the "three strikes"
rule of Section 1915(g) operates as a "safety valve" to prevent impending harms to prisoners
otherwise barred from proceeding in forma pauperis. See July Order at 4 (citing cases).
Generally speaking, the allegations relevant to the "imminent danger" 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).
Here, plaintiff claims that he is innocent of the crimes of which he was convicted and
complains that he has not been afforded a full and fair opportunity to establish his innocence
and to secure his release. See July Order at 5; Compl. at 1-3. Upon review, and even
assuming that plaintiff's claims have merit (and the Court makes no such finding), the
complaint affords no basis upon which the Court could conclude that the actions or inactions
of the named defendants placed plaintiff in "imminent danger of serious physical injury" for
purposes of Section 1915(g).
Based upon the foregoing, this aspect of plaintiff's motion for reconsideration of the
July Order is denied.
Plaintiff is hereby afforded a final opportunity to pay the $400.00 filing fee in full if he
wishes to proceed with this action. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 317 (3d Cir.
2001) ("Section 1915(g) does not prevent a prisoner with 'three strikes' from filing a civil
action; he or she is simply unable to enjoy the benefits of proceeding [in forma pauperis] and
must pay the fees at the time of filing instead of under the installment plan."); see also
Polanco v. Hopkins, 510 F.3d 152, 156 (2d Cir. 2007) (per curiam). Plaintiff is advised that
his failure to pay the filing fee for this action in full within thirty days from the filing date of this
Decision and Order will result in the dismissal of this action, without prejudice, without further
Order of this Court.
WHEREFORE, it is
ORDERED that plaintiff's motion for reconsideration of the July Order (Dkt. No. 5) is
DENIED; and it is further
ORDERED that plaintiff is afforded a final opportunity to pay the filing fee of four
hundred dollars ($400.00) in full if he wishes to avoid dismissal of this action; and it is further
ORDERED that upon plaintiff’s compliance with this Decision and Order, the Clerk
shall return the file to this Court for review of the complaint in accordance with 28 U.S.C. §
1915A; and it is further
ORDERED that if plaintiff fails to pay the filing fee in full within thirty (30) days of the
filing date of this Decision and Order, the Clerk is directed to enter judgment dismissing this
action, without prejudice, without further order of this Court; and it is further
ORDERED that the Clerk serve a copy of this Decision and Order on plaintiff.
IT IS SO ORDERED.
Dated: August 11 , 2017
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