Gssime v. Burge et al

Filing 45

-CLERK TO FOLLOW UP-DECISION AND ORDER granting 43] Motion to Dismiss in part insofar as it seeks revocation of plaintiff's in forma pauperis status. Defendants motion [#43] is granted insofar as it seeks revocation of Plaintiffs in forma paupe ris status. Plaintiff must pay the applicable filing fee of three hundred fifty dollars ($350) within thirty (30) days of the filing of this Decision and Order, and his failure to pay such fee will result in a dismissal of this case without fur ther order of the Court. In the event that this action is dismissed for Plaintiffs failure to pay the filing fee, the Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure.Signed by Hon. Charles J. Siragusa on 2/4/13. (KAP)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
SAID GSSIME,
Plaintiff
-vs-

DECISION AND ORDER
08-CV-6404 CJS(mw p)

MR. JOHN BURGE, et al.,
Defendants
__________________________________________
INTRODUCTION
Plaintiff, a prisoner in the custody of the New York State Department of
Corrections and Community Services (“ DOCCS” ), is suing pursuant to 42 U.S.C. §
1983, alleging that Defendants violated his federal constitutional rights. Now before
the Court is Defendants’ motion to revoke Plaintiff’ s in forma pauperis status and
dismiss this action. (Docket No. [#43]). The application to revoke Plaintiff’ s in forma
pauperis status is granted, and this action w ill be dismissed unless Plaintiff pays the
filing fee w ithin thirty (30) days.
BACKGROUND
On September 5, 2008, Plaintiff submitted to the Court a Complaint and an
application to proceed in forma pauperis (“ IFP” ). The Complaint [#1] alleged, inter
alia, that in 2007, at Elmira Correctional Facility, Defendants denied Plaintiff medical
and dental care, groped his genitals during a security frisk and retaliated against him
for filing a grievance. There is no indication that Plaintiff w as in imminent danger of
physical harm w hen he commenced this action, at w hich time he w as housed at
Marcy Correctional Facility.
1

When filing this action, Plaintiff used a form complaint that required him to list
any other law suits that he had filed pertaining to his imprisonment. Plaintiff
responded by listing a single action: 9:06-CV-1499, Gssime v Kadian, et al. (NDNY).
As it now appears, Plaintiff’ s representation that this w as his only prior law suit
arising from his imprisonment w as indisputably false.
On September 24, 2008, the Court relied on Plaintiff’ s representations and
granted his application to proceed in forma pauperis. This action then proceeded
through pretrial discovery.
On December 11, 2012, Defendants filed the subject motion to dismiss [#43].
Specifically, Defendants indicate that the Court should revoke Plaintiff’ s in forma
pauperis status pursuant to 28 U.S.C. § 1915(g), and dismiss the action, because
prior to the date that he commenced this action, he had at least three other actions
dismissed as being frivolous, malicious, or failing to state a claim.
In support of the application, Defendants identify the three actions that w ere
previously dismissed, as being frivolous, malicious or failing to state a claim, as
follow s: 1) 06-CV-4988, Gssime v. Bray (NDNY Apr. 3, 2007); 2) 6:07-CV-0363,
Gssime v. Eli Lilly, et al. (NDNY Apr. 27, 2007); 3) 07-2094-cv, Gssime v. Bray (2d
Cir. Mar. 28, 2008). Copies of the respective decisions and orders dismissing those
actions are attached to Defendants’ moving papers. Those decisions and orders do,
in fact, indicate that those actions w ere dismissed for failing to state a claim and/or
for being frivolous.

2

In response to the motion to dismiss, Plaintiff argues that dismissal is not
appropriate, “ [s]ince appeals still pending, and some are re-store by the Court.” [sic]
See, Docket No. [#44]. How ever, there is no indication that Plaintiff’ s assertion is
correct. To the contrary, although Plaintiff appealed the dismissal of Gssime v. Bray,
the Second Circuit dismissed the appeal as lacking “ an arguable basis in fact or law ,”
thereby accounting for tw o of his three strikes. Moreover, there is no indication that
Gssime v. Eli Lilly w as actually “ restored” or re-opened. 1
DISCUSSION
The relevant section of law upon w hich Defendants’ motion is based states, in
pertinent part:
In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section if the prisoner has, on 3 or
more prior occasions, w hile incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that w as
dismissed on the grounds that it is frivolous, malicious, or fails to state
a claim upon w hich relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.
28 U.S.C.A. § 1915(g) (West 2012). Clearly, the Court may revoke a prisoner
plaintiff’ s IFP status if it determines that he is in violation of the three strikes
provision. See, generally, Harris v. City of New York, 607 F.3d 18 (2d Cir. 2010);
Collazo v. Pagano, 656 F.3d 131, 133-134 (2d Cir. 2011).

1

On January 18, 2013, the Court’s law clerk telephoned the Office of the Clerk for U.S. District
Court for the Northern District of New York, in Syracuse, and was advised that Gssime v. Eli Lilly was
dismissed with prejudice in 2007 and never re-opened.

3

In this case, the Court finds that Plaintiff accumulated three “ strikes” prior to
commencing this action, and that the “ imminent danger” exception does not apply.
The Court w ill therefore revoke Plaintiff’ s in forma pauperis status.
The Court also finds that revocation of Plaintiff’ s IFP status is w arranted, as a
sanction w hich the Court may impose pursuant to its inherent authority over this
action, because he misrepresented his prior litigation history to the Court, hampering
the Court’ s ability to evaluate his IFP application. See, Harris v. City of New York,
607 F.3d at 23 (“ As an initial matter, w e note that Harris' s ‘ Prisoner Complaint’
forms misrepresented how many strike suits he had filed prior to bringing the instant
action. Harris should not benefit from his ow n misleading submissions[.]” ); Cameron
v. Lambert, No. 07 Civ. 9258(DC), 2008 WL 4823596 at * 4 (S.D.N.Y. Nov. 7,
2008) (“ Pursuant to its inherent pow er, a court may impose sanctions against a
party for ‘ act[ing] in bad faith, vexatiously, w antonly, or for oppressive reasons.’
Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991) (citations omitted), and for
‘ misconduct during the course of litigation.’ Milltex Indus. Corp. v. Jacquard Lace
Co., 55 F.3d 34, 37-38 (2d Cir.1995).” ).
CONCLUSION
Defendant’ s motion [#43] is granted insofar as it seeks revocation of
Plaintiff’ s in forma pauperis status. Plaintiff must pay the applicable filing fee of three
hundred fifty dollars ($350) within thirty (30) days of the filing of this Decision and Order,
and his failure to pay such fee will result in a dismissal of this case without further order
of the Court.
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In the event that this action is dismissed for Plaintiff’s failure to pay the filing fee,
the Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this
Order would not be taken in good faith and leave to appeal to the Court of Appeals as a
poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further
requests to proceed on appeal in forma pauperis should be directed on motion to the
United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the
Federal Rules of Appellate Procedure.
So Ordered.
Dated:

Rochester, New York
February 4, 2013
ENTER:

/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

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