Jones v. Moorjani et al

Filing 37

ORDER ADOPTING REPORT AND RECOMMENDATION: for 31 Report and Recommendations. For the foregoing reasons, the Court accepts and adopts Magistrate Judge Cott's December 13, 2013 R&R in full. Accordingly, State Defendants' motion to revoke Jones's IFP status and Jones's motion for default judgment against Dr. Ravikumar and Mount Vernon are denied. SO ORDERED. (Signed by Judge Paul A. Crotty on 1/30/2014) Copies Mailed By Chambers. (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: January 31, 2014

GLYNN JONES,
Plaintiff,

13 Civ. 2247 (PAC) (JLC)
ORDER ADOPTING REPORT
AND RECOMMENDATION

v.
HARISH MOORJANI,
SUNDARAM RAVIKUMAR, and
MOUNT VERNON HOSPITAL,
Defendants.

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HONORABLE PAUL A. CROTTY, United States District Judge:
On April 4, 2013, pro se Plaintiff Glynn Jones ("Jones") sued Defendants Harish
MOOljani ("Dr. MooIjani"), Sundaram Ravikumar ("Dr. Ravikumar") (collectively, "State
Defendants"), and Mount Vernon Hospital ("Mount Vernon"), under 42 U.S.C. § 1983, alleging
violations of the Eighth and Fourteenth Amendments. The allegations arise from medical
treatment Jones received at Mount Vernon while Jones was a prisoner at Fishkill Correctional
Facility ("Fishkill") in Dutchess County, New York. Jones alleges that Dr. Ravikumar and Dr.
MooIjani caused him to suffer serious bodily injury by providing unwanted and unauthorized
medical treatment.
Jones's application to proceed in fonna pauperis ("IFP") was granted on May 8, 2013.
(Dkt. No.4.) On July 10,2013, State Defendants filed a motion to revoke Jones's IFP status.
(Dkt. No. 15.) Jones moved for Default Judgment against Dr. Ravikumar and Mount Vernon on
July 18,2013. (Dkt. No. 18.) On December 13,2013, Magistrate Judge Cott issued a Report
and Recommendation ("R&R") recommending that both motions be denied. (Dkt. No. 31.)
Objections were timely filed by State Defendants on January 13, 2014. (Dkt. No. 34). For the
reasons that follow, the Court adopts Magistrate Judge Cott's R&R in its entirety, denies State

Defendants' motion to revoke Jones's IFP status, and denies Jones's motion for a directed
verdict.
BACKGROUND!

I.

Facts
In September 2012, Jones was incarcerated at Fishkill. Prior to his incarceration, he had

an arteriovenous graft ("AV -graft") inserted in his left forearm at Westchester County Medical
Center ("WCMC") so he could receive dialysis. He also received a bone marrow transplant,
which made him vulnerable to low red blood cell and hemoglobin levels.
While at Fishkill, a routine test revealed that Jones had decreased blood flow in his AVgraft and he was taken to Dr. Ravikumar's office in Dobbs Ferry, where he received a dec lotting
procedure. The following day, a nurse at Fishkill discovered that Jones's AV-graft had become
fully blocked despite the prior day's procedure. Jones was transported to the emergency room at
Mount Vernon, where Dr. Ravikumar is a surgeon. Dr. Ravikumar re-examined Jones and
performed surgery. During his nine-day admission to Mount Vernon, Jones also came under the
care of Dr. Moorjani. After regular blood tests revealed that Jones's red blood cell and
hemoglobin counts were deteriorating, he received two blood transfusions and was fitted with a
perma catheter.
Jones was transported to WCMC on October 12,2012 and placed under the care of Dr.
Tauseef Ahmed, the physician who had carried out Jones's bone marrow transplant. Dr. Ahmed
allegedly informed Jones that his red blood cell count deteriorated as a result of Mount Vernon's
failure to administer the drug Epoetin, as Ahmed previously ordered. Jones claims that as a
result of the unauthorized procedures and treatment, he suffers severe pain in his left arm,

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Unless otherwise indicated, all facts herein are taken from the R&R.

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numbness, an involuntary twitch, and some loss of use of his left hand. Accordingly, Jones seeks
$25,000,000 in compensatory damages and attorney's fees.
The current action, however, is not Jones's first foray into federal litigation. Jones has
been a plaintiff in at least 21 separate actions since 1997, mostly in the Southern and Eastern
Districts of New York. Five of these actions were at least partially dismissed with prejudice for
failure to state a claim. State Defendants rely on these dismissals in support oftheir motion to
revoke Jones's IFP status under the "three strikes" provision of the Prison Litigation Reform Act
("PLRA"), 28 U.S.C. § 1915. Additionally, Jones has three other actions currently pending in
the Southern District. In one ofthese cases, U.S. District Judge Nelson S. Roman denied a
motion to revoke Jones's IFP status for substantially the same reasons as set forth in Magistrate
Judge Cott's R&R. See Order, Jones v. Midelton, No. 12 Civ. 02087 (NSR) (S.D.N.Y. Dec. 23,
2013), Dkt. No. 51.

II.

Magistrate Judge Cott's R&R
Magistrate Judge Cott recommended that the Court deny State Defendants' motion to

revoke Jones's IFP status and Jones's motion for default judgment against Dr. Ravikumar and
Mount Vernon. First, the Magistrate Judge concluded that Jones should not lose his IFP status
because only two of the five case dismissals put forth by State Defendants qualify as a "strike"
under the PLRA. The first strike was Jones v. City ofN.Y., No. 10 Civ. 3940 (S.D.N.Y. May
12,2010), which was dismissed for failure to state a claim. The second strike was Jones v.
Connolly. No. 09 Civ. 3287 (S.D.N.Y. Feb. 16,2010), which was dismissed with prejudice under
Fed. R. Civ. P. 12(b)(6).
Magistrate Judge Cott concluded that the three other lawsuits were not strikes under the
PLRA. First, Jones v. N.Y.C. Police Dep't, No. 09 Civ. 3504 (E.D.N.Y. Dec. 15,2009), did not
qualify as a strike because Jones was not incarcerated when the action was filed. Second, Jones
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v. Fischer, No. 07 Civ. 7589 (S.D.N.Y. Aug. 7, 2008), did not qualify as a strike because several
of the claims were dismissed with prejudice for improper venue. Since only dismissals of an
"action or appeal" constitute a strike, see § 1915(g), an entire action-not merely some of its
claims-must be dismissed for one ofthe enumerated reasons to qualify as a strike. Third, the
Magistrate Judge determined that Jones v. City ofN.Y., No. 00 Civ. 6872 (S.D.N.Y. Sept. 13,
2000), was not a strike because Jones paid the full filing fee and did not proceed IFP.
Magistrate Judge Cott also summarily rejected the argument that two actions not relied
upon by State Defendants (Jones v. City of N.Y., No. 99 Civ. 8281 (E.D.N.Y. Mar. 16,2000)
and Jones v. Comm'r ofN.Y.C. Dep't ofCorr., No. 00 Civ. 370 (E.D.N.Y. Mar. 16,2000»
qualify as strikes under the PLRA. Magistrate Judge Cott noted that U.S. District Judge Edgardo
Ramos considered these actions and declined to qualify them as strikes because Jones had
affirmed that he prepaid the filing fees in those actions. See Order, Jones v. Midelton, No. 12
Civ. 2087 (ER) (S.D.N.Y. Aug. 31, 2013), Dkt. No. 13.
Regarding the motion for default judgment, Magistrate Judge Cott determined that this
drastic remedy was unwarranted. First, the motion for default judgment against Mount Vernon
was filed before Mount Vernon was served with the summons and complaint. Second, Dr.
Ravikumar timely filed an answer to Jones's complaint. Therefore, Magistrate Judge Cott
concluded that default judgment was inappropriate.
DISCUSSION

I.

Standard of Review
The Court may "accept, reject, or modify, in whole or in part, the findings or

recommendations made by [a] magistrate judge." 28 U.S.C. § 636(b)(l)(C). When a timely
objection is made to the magistrate's recommendations, the Court is required to review the
contested portions de novo. Id.; Pizaro v. Bartlett, 776 F. Supp. 815,817 (S.D.N.Y. 1991). The
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Court may adopt those portions of the R&R to which "no objections have been made and which
are not facially erroneous." Wilds v. United Parcel Serv.• Inc., 262 F. Supp. 2d 163, 170
(S.D.N.Y. 2003) (quotations omitted). When a party does object, however, the objection must be
"specific and clearly aimed at particular findings in the magistrate judge's proposal." Molefe v.
KLM Royal Dutch Airlines, 602 F. Supp. 2d 485,487 (S.D.N.Y. 2009).
II.

State Defendants' Objections

State Defendants object to the R&R's recommendation to deny the motion to revoke
Jones's IFP status. State Defendants do not challenge Magistrate Judge Cott's conclusion that
Jones v. N.Y.C. Police Dep't, No. 09 Civ. 3504 (E.D.N.Y. Dec. 15,2009), Jones v. Fischer, No.
07 Civ. 7589 (S.D.N.Y. Aug. 7, 2008), and Jones v. City ofN.Y., No. 00 Civ. 6872 (S.D.N.Y.
Sept. 13, 2000), do not qualify as strikes. Instead, Defendants challenge the factual finding that
Jones prepaid the filing fees in Jones v. City ofN.Y., No. 99 Civ. 8281 (E.D.N.Y. Mar. 16,
2000), and Jones v. Comm'r ofN.Y.C. Dep't ofCorr., No. 00 Civ. 370 (E.D.N.Y. Mar. 16,
2000). (See Defendants' Objections to Report and Recommendation ("Def.'s Obj.") at 2-3.)
Defendants' objections are without merit. Jones's affirmation is not the only evidence
that Jones paid the filing fees. In Jones v. City of N.Y., No. 99 Civ. 8281 (E.D.N.Y. Mar. 16,
2000), the court received a letter from Jones "enclosing a check in the amount of $150.00 for the
filing fee." (Dkt. No. 12.) Similarly, in Jones v. Comm'r ofN.Y.C. Dep't ofCorr., No. 00 Civ.
370 (E.D.N.Y. Mar. 16,2000), Jones filed an affidavit averring that he "enclose[d] a check in the
amount of$150.00 as payment for filing fees." (Dkt. No.2.) Although neither docket indicates
the receipt of fees or a receipt number,

Def. 's Obj. at 2-3), the Clerk for the Eastern District

of New York did not include receipt numbers for fee-paid actions on the docket until recently,
and certainly not in 2000. Further, the denial of Jones's motion to proceed IFP in the City of
New York case is irrelevant. (See id. at 2-3.) In fact, that an application to proceed IFP was
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pending necessarily means that Jones lacked IFP status at the time of the dismissal.
Accordingly, the Court finds that Jones prepaid the filing fees and lacked IFP status in both
actions.
Since the filing fees in both cases were prepaid, it is irrelevant that both cases were
dismissed on strike-worthy grounds. Accordingly, the Court agrees with Magistrate Judge Cott's
holding and, finding no clear error, adopts the R&R in its entirety.

CONCLUSION
For the foregoing reasons, the Court accepts and adopts Magistrate Judge Cott's
December 13, 2013 R&R in full. Accordingly, State Defendants' motion to revoke Jones's IFP
status and Jones's motion for default judgment against Dr. Ravikumar and Mount Vernon are
denied.
Dated: New York, New York
January 30,2014

SO ORDERED

PA{ff~

United States District Judge
Copies Mailed To:
Glynn Jones
2303 Bedford Avenue
Apt. #2
Brooklyn, NY 11226

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