Fredricks v. O'Hagan Wolfe

Filing 8

ORDER OF DISMISSAL UNDER 28 U.S.C. § 1915(g): The Court denies Plaintiff's construed request to proceed IFP, and dismisses this action without prejudice, under the PLRA's "three-strikes" rule.5 28 U.S.C. § 1915(g). Plai ntiff 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. 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). 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 Judge Laura Taylor Swain on 9/23/2024) (sgz) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NIGEL FREDRICKS,
Plaintiff,
-againstCATHERINE O’HAGAN WOLFE, Clerk of
Court,

1:24-CV-5584 (LTS)
ORDER OF DISMISSAL UNDER
28 U.S.C. § 1915(g)

Defendant.
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff Nigel Fredricks, who is currently incarcerated in the Green Haven Correctional
Facility, 1 brings this action pro se. 2 He has neither paid the fees to bring this action nor filed an
application to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. Because
Plaintiff has not paid the fees to bring this action, the Court understands that he brings this action
seeking to proceed IFP. Another federal district court has recognized Plaintiff as barred, however,
from filing any new federal civil action IFP while he is a prisoner. See Fredricks v. I.R.C. Entity
D.O.C., 9:23-CV-0112, at 3-6 (N.D.N.Y. July 11, 2023), appeal dismissed as frivolous, No. 237197 (2d Cir. June 18, 2024). That 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

1

Plaintiff filed his complaint while incarcerated in the Coxsackie Correctional Facility.

On September 13, 2024, the court received from Plaintiff a motion for an extension of
time to file a notice of appeal. (ECF 1:24-CV-5584, 5.) Three days later, on September 16, 2024,
the court received a letter from Plaintiff that the Court construes as a request to withdraw that
motion. (ECF 2:24-CV-5584, 6.) The Court grants Plaintiff’s request.
2

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. 3 Instead, while he asserts that he is “under immediate danger” (ECF 1:24CV-5584, 1, at 1), Plaintiff sues Catherine O’Hagan Wolfe, the Clerk of Court of the United
States Court of Appeals for the Second Circuit, and the substance of his claims seems to be his
dissatisfaction with the outcome of his previously filed pro se civil action in this court, Fredricks
v. Ho, 1:21-CV-1855 (LTS) (S.D.N.Y.), as well as with the outcome of his subsequent appeal in
the Court of Appeals. 4 Plaintiff is therefore barred, under Section 1915(g), from filing this action
IFP as a prisoner.
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
is filed,” Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002).
3

By order dated June 17, 2021, the Court granted Plaintiff 60 days’ leave to file an
amended complaint in Fredericks, 1:21-CV-1855 (LTS). (ECF 1:21-CV-1855, 10.) Plaintiff filed
an amended complaint in that action. (ECF 1:21-CV-1855, 13.) In an order dated September 20,
2021, and entered two days later, on September 22, 2021, however, the Court dismissed that
action for failure to state a claim on which relief may be granted. (ECF 1:21-CV-1855, 16.) A
notice of appeal was received by the court from Plaintiff on September 20, 2021, and entered on
September 23, 2021. (ECF 1:21-CV-1855, 18.) In three separate orders each dated October 18,
2021, the Court of Appeals initially dismissed the appeal, effective November 8, 2021, unless
Plaintiff filed in that court a Form D-P, an Acknowledgment and Notice of Appearance Form,
and either paid the fees to appeal or sought IFP status to appeal. Fredericks v. Whittingham, No.
21-2362 (2d Cir. Oct. 18, 2021). The Court of Appeals ultimately issued a mandate on December
27, 2021, dismissing Plaintiff’s appeal, effective November 8, 2021, because of Plaintiff’s failure
to either pay the fees to appeal or seek IFP status to appeal. (ECF 1:21-CV-1855, 20.) Plaintiff
then filed another notice of appeal in this court, which the court received on September 2, 2022,
and entered on September 16, 2022. (ECF 1:21-CV-1855, 21.) In a mandate dated December 27,
2023, but issued on January 17, 2024, the Court of Appeals dismissed Plaintiff’s second appeal
“because the notice of appeal was untimely filed and because the appeal is duplicative of the
appeal docketed under 21-2362.” (ECF 1:23-CV-1855, 22.)
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2

CONCLUSION
The Court denies Plaintiff’s construed request to proceed IFP, and dismisses this action
without prejudice, under the PLRA’s “three-strikes” rule.5 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. 6 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).
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

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).
5

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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