Trotman v. Doe et al

Filing 5

ORDER OF DISMISSAL UNDER 28 U.S.C. SECTION 1915(g): The Court denies Plaintiff's request to proceed IFP, and dismisses this action without prejudice, under the PLRA's "three-strikes" rule.2 28 U.S.C. § 1915(g). Plaintiff re mains barred from filing any future federal civil action IFP while he is a prisoner, unless he is under imminent danger of serious physical injury. Id. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order wou ld not be taken in good faith and, therefore, IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Court directs the Clerk of Court to enter a judgment dismissing this action without prejudice for the reason set forth in this order. SO ORDERED. (Signed by Chief Judge Laura Taylor Swain on 9/23/2024) (tg) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DAVID M. TROTMAN,
Plaintiff,
-againstJ. DOE, Prosecutor NY Supreme, et al.,

1:24-CV-5409 (LTS)
ORDER OF DISMISSAL UNDER
28 U.S.C. § 1915(g)

Defendants.
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff David M. Trotman, who is currently held in the Otis Bantum Correctional Center
on Rikers Island, brings this action pro se. He requests to proceed in forma pauperis (“IFP”), that
is, without prepayment of fees. Another federal district court has recognized Plaintiff as barred,
however, from filing any new federal civil action IFP while he is a prisoner. See Trotman v.
McCoy, 9:22-CV-1269 (N.D.N.Y. Mar. 7, 2023). That court’s above-cited decision and order
relied on the “three-strikes” provision of the Prison Litigation Reform Act (“PLRA”), 28 U.S.C.
§ 1915(g), which provides that:
[i]n no event shall a prisoner bring a civil action . . . [IFP] 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).
Although Plaintiff has filed this new federal civil action seeking IFP status, his complaint
does not show that he was under imminent danger of serious physical injury at the time that he
filed his complaint. 1 Instead, Plaintiff asserts claims under 42 U.S.C. § 1983, seeking this Court’s

For the purposes of the exception to the Section 1915(g) filing bar, a danger “that has
dissipated by the time a complaint is filed,” Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir.
2009), is not an imminent one; rather, the danger must be one “existing at the time the complaint
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intervention in his ongoing state-court criminal proceedings; he asks this Court for “[a]
preliminary and permanent injunction ordering [the presiding state-court judge and prosecutor]
to change venue or court section,” and for “a declaration that the acts and omissions described
[in his complaint] violated [his] rights under the Constitution and laws of the United States.”
(ECF 1, at 1.) Plaintiff is therefore barred, under Section 1915(g), from filing this action IFP as a
prisoner.
CONCLUSION
The Court denies Plaintiff’s request to proceed IFP, and dismisses this action without
prejudice, under the PLRA’s “three-strikes” rule. 2 28 U.S.C. § 1915(g). Plaintiff remains barred
from filing any future federal civil action IFP while he is a prisoner, unless he is under imminent
danger of serious physical injury. 3 Id.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order
would not be taken in good faith and, therefore, IFP status is denied for the purpose of an appeal.
See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

is filed,” Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002).
Plaintiff may commence a new federal civil action by paying the relevant fees. If
Plaintiff does so, his complaint will be reviewed under 28 U.S.C. § 1915A, which requires the
court to dismiss any civil rights complaint from a prisoner if it: “(1) is frivolous, malicious, or
fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a
defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).
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The court may bar any vexatious litigant (including a nonprisoner) from filing future
civil actions in this court (even if the relevant fees are paid) without first obtaining leave from
the court. See In re Martin-Trigona, 9 F.3d 226, 228-30 (2d Cir. 1993) (discussing sanctions
courts may impose on vexatious litigants, including a “leave to file” requirement).
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The Court directs the Clerk of Court to enter a judgment dismissing this action without
prejudice for the reason set forth in this order.
SO ORDERED.
Dated:

September 23, 2024
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge

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