Abreu v. Farley, et al.
Filing
137
DECISION AND ORDER granting 59 Motion to Revoke Plaintiff's IFP Status and granting 131 Motion to File Reply Brief. Signed by Hon. Elizabeth A. Wolford on 11/25/2019.(CDH)-CLERK TO FOLLOW UP-
—niED—^
UNITED STATES DISTRICT COURT
NOV 2 5 2019
WESTERN DISTRICT OF NEW YORK
DISTRtCTOrCARLOS ABREU,
DECISION AND ORDER
Plaintiff,
6:II-CV-0625I LAW
V.
ERIC FARLEY,ET AL,
Defendants.
INTRODUCTION
By Deeision and Order filed on Mareh 15, 2019(the "March Decision")(Dkt. 121),
this Court granted in part and denied in part Defendants' motion for partial summary
judgment and held Defendants' motion to revoke Plaintiffs in forma pauperis ("IFP")
status in abeyance pending the Second Circuit's deeision in Shepherd v. Annucci, No. 172261 (2d Cir. July 21, 2017). On April 15, 2019, the Second Circuit issued its deeision in
Shepherd v. Annucci, 921 F.3d 89 (2d Cir. 2019). Both sides have submitted additional
briefing regarding Shepherd's impact on the disposition ofDefendants' revocation motion.
{See Dkt. 125; Dkt. 129; see also Dkt. 131). For the reasons that follow. Defendants'
motion to revoke Plaintiffs IFP status (Dkt. 59) is granted, and Plaintiffs IFP status is
hereby revoked.
BACKGROUND
The factual background and procedural history relevant to this motion are set forth
in detail in the Court's Mareh Deeision, with which familiarity is assumed. (Dkt. 121).
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The Court provides only a brief summary, as well as additional background information as
relevant to this motion.
Plaintiff Carlos Abreu ("Plaintiff) commenced this action pursuant to 42 U.S.C.
§ 1983, alleging constitutional violations arising out of his incarceration at the Five Points
Correctional Facility ("Five Points"). (Dkt. 1). After this Court's initial screening of
Plaintiffs first complaint, the Court granted Plaintiffleave to proceed IFP. (Dkt. 3). Soon
thereafter. Plaintiff was appointed pro bono counsel to assist in the prosecution of this
action. {See Dkt. 9). Plaintiffsubsequently filed voluminous pleadings, alleging numerous
grounds for which he believes he is entitled to relief against an array of individuals.
On March 15, 2019, this Court issued the March Decision, granting in part and
denying in part Defendants'motion for partial summary judgment. (Dkt. 121). Plaintiffs
§ 1983 excessive use of force and related failure to intervene claims. Eighth Amendment
conditions-of-confmement claims for unlawful prison cell illumination, and common law
causes of action survived summary judgment as against a number ofthe named defendants
as more specifically outlined in that decision.
The Court also held Defendants' motion to revoke Plaintiffs IFP status in abeyance
pending the Second Circuit's decision in Shepherd v. Annucci, No. 17-2261 (2d Cir. July
21, 2017). In doing so, the Court identified numerous cases in which a court had "revoked
the IFP status of a three-strikes litigant when the defendant challenges the court's
preliminary finding that the litigant is entitled to the imminent danger exception, using
evidence outside the four comers ofthe complaint to refute that preliminary finding." (Dkt.
121 at 9-10). Defendants contend that the same conclusion should be reached here. {See,
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e.g., Dkt. 59-2 at 5-6). However, because the Shepherd case was likely to address the law
on this very issue, the Court declined to rule upon Defendants' revocation motion until the
Second Circuit had issued its decision.
On April 15, 2019, the Second Circuit decided Shepherd v. Annucci, 921 F.3d 89
(2d Cir. 2019), holding that "courts may reexamine a provisional determination that a
complainant is in 'imminent danger of serious physical injury' when, after being served
with the complaint, a defendant challenges that determination." Id. at 95. The Shepherd
court also confirmed that a court may conduct a "narrow evidentiary inquiry" when
reexamining an imminent danger determination. Id. at 95-96.
This Court subsequently requested both sides to submit supplemental briefing as to
what impact, if any. Shepherd had on the disposition of Defendants' pending revocation
motion. (Dkt. 122). Both sides have since filed additional submissions. (Dkt. 125; Dkt.
129;.see Dkt. 131').
In the meantime, it came to the Court's attention that Plaintiff was released from
state custody and deported. The Court conducted a status conference with counsel on
October 2, 2019, and it was agreed that it would be beneficial to conduct a telephone call
with Plaintiff to explore how he intended to continue to litigate this matter, now that he
was barred from entry into this Country. (Dkt. 134). The Court arranged for such a
conference to be held on October 25,2019,and also arranged for an interpreter to be present
at the Court's expense. However,Plaintiff did not appear telephonically for the conference
'
Defendants filed a request to submit an attached reply brief(Dkt. 131), which the
Court hereby grants.
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and there was no answer at the telephone number that his counsel repeatedly dialed in an
attempt to contact Plaintifffor the conference. (Dkt. 136). Because ofthe Court's decision
concerning Plaintiffs IFP status, it does not, at this time, reach any conclusion on whether
Plaintiffs deportation and failure to participate in a Court-scheduled status conference
necessitates appropriate action, including dismissal ofthis action.
DISCUSSION
I.
The Three Strikes Rule and Imminent Danger Exception
A party commencing a civil action in this Court ordinarily must pay a $350.00 filing
fee, as well as a $50.00 administrative fee. See 28 U.S.C. § 1914. Of course, the Court
may grant a party leave to proceed IFP if it determines that the party is unable to pay the
filing fee. See id. at § 1915. Nonetheless, not all litigants may be granted leave to proceed
IFP. As set forth in 28 U.S.C. § 1915(g), the "three strikes" provision prevents prisoners
from proceeding IFP if they have brought three or more lawsuits that have been dismissed
as frivolous or for failure to state a claim:
In no event shall a prisoner bring a civil action or appeal ajudgment in a civil
action or proceeding under this section ifthe 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.
M at § 1915(g).
Thus, under that statute, a prisoner with three strikes may proceed IFP only if he can
show that he is "under imminent danger of serious physical injury." Id. "An imminent
danger is not one that has dissipated by the time a complaint is filed; rather it must be one
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existing at the time the complaint is filed." Chavis v. Chappius,618 F.3d 162, 169(2d Cir.
2010)(internal quotation marks and citation omitted).
The Second Circuit has instructed that, when determining whether a prisoner has
shown an imminent danger, a court should "not make an overly detailed inquiry into
whether the allegations qualify for the exception, because § 1915(g) concems only a
threshold procedural question." Id. (internal quotation marks omitted). That instruction
suggests that a court should consider only the allegations in the complaint when
considering whether the imminent danger exception applies, although the Second Circuit
did not specifically limit the imminent danger review to the four comers ofthe complaint.
See id.', see also Abreu v. Lira, No. 9:12-CV-1385(NAM/DEP),2014 WL 4966911, at *2
(N.D.N.Y. Sept. 30, 2014), adopting report and recommendation. No. 9:12-CV-1385
(NAM/DEP)
(N.D.N.Y. Apr. 11, 2014).
The Second Circuit has since clarified that district courts "may reexamine a
provisional determination that a complainant is in 'imminent danger of serious physical
injury' when, after being served with the complaint, a defendant challenges that
determination," and conduct a "narrow evidentiary inquiry" into the legitimacy of the
plaintiffs fear of imminent danger. Shepherd, 921 F.3d at 94-95. The Shepherd court
explained that to hold "otherwise would allow prisoner-litigants to continue proceeding
IFF where an assertion of imminent danger is made—even if defendants had
'incontrovertible proof that rebutted those allegations.'" Id. at 95 (quoting Taylor v.
Watkins, 623 F.3d 483, 485 (7th Cir. 2010)); accord Chavis, 618 F.3d at 170("A court
may find that a complaint does not satisfy the 'imminent danger' exception if the
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complainant's claims of imminent danger are conclusory or ridiculous." (quotation and
citation omitted)). Accordingly, the Second Circuit agreed with the numerous other courts
that have revoked the IFP status of a three-strikes litigant when a defendant challenges the
preliminary finding that the litigant is entitled to the imminent danger exception. See Abreu
V. Brown,317 F. Supp. 3d 702,705(W.D.N.Y.2018)
("The Court agrees with those courts
that it may look beyond the complaint when considering a defendant's challenge to the
preliminary finding that a three-strikes litigant is entitled to the imminent danger
exception."); Tafari v. Baker, No. 6:16-cv-06472(MAT), 2017 WL 1406274, at *2
(W.D.N.Y. Apr. 20, 2017)(collecting cases stating the same); Bernier v. Koenigsmann,
No. 15-CV-209A, 2017 WL 603217, at *4(W.D.N.Y. Feb. 15, 2017)("Although courts
assessing imminent danger should not make an overly detailed inquiry, they are allowed to
look at information outside the four comers of a complaint."); Green v. Venettozzi, No. 14CV-1215 (BKS/CFH), 2016 WL 6902545, at *3 (N.D.N.Y. Oct. 31, 2016)("To refute a
preliminary finding with facts that satisfy the imminent danger exception, the Court may
look outside the four comers of the complaint."), report and recommendation adopted,
2016 WL 6902180(N.D.N.Y. Nov. 23,2016); Abreu v. Lira,2014 WL 4966911,at *2("In
reviewing the issues surrounding plaintiffs claim that at the time he filed the complaint,
he was facing imminent danger of serious physical injury, the Court agrees ... that it is
appropriate for the Court to review evidence outside the allegations ofthe complaint upon
defendants' challenge to plaintiffs IFP status."); Jackson v. Jin, No. 12-CV-6445-FPG,
2014 WL 1323211, at *1 (W.D.N.Y. Mar. 31, 2014) ("In determining whether the
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imminent danger exception applies, the Court may consider more recent medical
evidence.")-
Plaintiff agrees that "the Shepherd decision confirmed that district courts may make
a limited review of materials outside the complaint in determining whether to revoke IFF
status." (Dkt. 129 at 4). However,Plaintiff emphasizes that this "inquiry must be narrow,
as the three-strikes rule concerns only a threshold procedural question." {Id.y, see
Shepherd,921 F.3d at 96("[A]narrow evidentiary challenge to a provisional determination
that a prisoner is in imminent danger ofserious physical injury should not metastasize into
'a full-scale merits review.'" (quoting Taylor, 623 F.3d at 486)). As such. Plaintiff
contends that Shepherd is factually distinguishable because Plaintiff has alleged a "pattern
of assault" and "threats of continuing violent assault." (Dkt. 129 at 8; see id. at 8-12).
By contrast. Defendants contend that
"explicitly found that it was not error
to revoke an inmate's pauper status where his own medical records and the testimony of
qualified medical staff rebutted his claims of imminent danger." (Dkt. 125 at 2).
Defendants argue that Plaintiffs own medical records and the declarations of the Five
Points medical personnel directly rebut Plaintiffs fear of imminent danger. {Id. at 2-4).
Defendants also argue that several of the claims asserted by the Shepherd plaintiff are
similar to Plaintiffs contentions here, further supporting revocation of Plaintiffs IFF
status. {See id. at 3-4).
Having considered the parties' arguments, the Court now turns to conduct a
"narrow"review ofDefendants' proffered evidence—consisting ofthe declarations ofFive
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Points corrections and medical staff and Plaintiff's medical records—to determine whether
the Court should revoke its preliminary finding that the imminent danger exception applies.
II.
Plaintiff is a "Three-Strikes Litigant" and the "Imminent Danger"
Exception Does Not Apply
The Court previously determined that Plaintiff was a three-strikes litigant because
at least four of Plaintiffs prior actions or appeals have been dismissed as frivolous or for
failure to state a claim. Plaintiffs strikes include at least the following: (1) Abreu v.
Disability Advocates, /«c., No. l:09-CV-06306-LAP(S.D.N.Y. July 15,2009)(dismissing
the complaint pursuant to 28 U.S.C.§ 1915(e)(2)(B)(ii));(2)Abreuv. Disability Advocates,
Inc., No. 09-CV-3268, Mandate (2d Cir. Oct. 30, 2009)(dismissing appeal because it
lacked an arguable basis in law or fact);(3) Abreu v. Supreme Court ofBronx Cty., No.
1:10-CV-01310-LAP, Judgment(S.D.N.Y. Feb. 18,2010)(dismissing complaint pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii)); and (4)Abreu v. Supreme Court ofBronx Cty., No. 101130(2d Cir. Aug. 11,2010)(dismissing appeal because it lacked an arguable basis in law
or fact).
However, Plaintiff argues that his IFP status should not be revoked pursuant to the
three-strikes rule "because his situation fits within the exception built into the statute's bar
for 'imminent danger of serious physical injury.'" (Dkt. 93 at 25). The imminent danger
exception is intended "as an escape hatch for genuine emergencies only." Lewis v.
Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). "While the term 'serious physical injury' as
utilized in section 1915(g) is not concretely defined, it has been construed by courts as
encompassing a 'disease that could result in serious harm or even death[.]'" Jackson,2014
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WL 1323211, at *1 (quoting Ibrahim v. District of Columbia, 463 F.3d 3, 7(D.C. Cir.
2006)). "The imminent danger an inmate faces, moreover, must be real, and not merely
speculative or hypothetical." Welch v. Charlan, No.9;06-CV-0061 (GTS/DEP),2008 WL
5382353, at *7 (N.D.N.Y. Dec. 16, 2008). As noted above, "[t]o revisit a preliminary
finding that a three-strikes plaintiff satisfies the imminent danger exception, the court may
look outside the four comers of the complaint." Tafari, 2017 WL 1406274, at *2; see
Shepherd, 921 F.3d at 94-95.
A plaintiff seeking to benefit from the imminent endangerment exception—^which,
as discussed above, is reserved "as an escape hatch for genuine emergencies only," Lewis,
279 F.3d at 531—^has the burden of establishing that he is in imminent danger of serious
physical injury to successfully oppose the revocation of his IFF status. See Coffman v.
Tsali, No.6:18CV186, 2018 WL 4502566, at *1 (E.D. Tex. Sept. 19, 2018)("The burden
is upon the plaintiffto show that he is in imminent danger of serious physical injury at the
time of the filing of the complaint through specific facts rather than conclusory
allegations."); Davis v. County ofAllegheny, No. CV 18-450, 2018 WL 2122882, at *1
(W.D.Pa. Apr. 19, 2018)
("A plaintiff who has three strikes, bears the burden of showing
that he is in 'imminent danger of serious physical injury.'"), report and recommendation
adopted, 2018 WL 2121605 (W.D. Pa. May 8, 2018); Taylor v. Watkins, No. CIV.10-4-
GPM,2010 WL 1963128, at *2(S.D. 111. May 17, 2010)("Defendants bear the burden of
producing evidence to preclude a prisoner from filing in forma pauperis, and once that
evidence is introduced, the burden shifts to the plaintiff to show that he is actually in
imminent danger ofserious physical harm. Defendants' burden is satisfied by the existence
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of the three strikes against Plaintiff. Plaintiff now bears the burden of showing he is in
imminent danger." (quoting Brown v. City ofPhiladelphia, Civil Actions Nos. 05-4160,
06-2496, 06-5408, 08-3369, 2009 WL 1011966, at *10(E.D. Pa. Apr. 14, 2009))); Crane
V. Hatton, No. C 06-06910 JF (PR), 2009 WL 3112077, at *2(N.D. Cal. Sept. 23, 2009)
("Plaintiff has the burden of proving that he is in imminent danger of serious physical
injury."); accord Fuller v. Myers, 123 F. App'x 365, 366 (10th Cir. 2005)("To meet his
burden under § 1915(g), the inmate must provide 'specific fact allegations of ongoing
serious physical injury, or a pattern of misconduct evidencing the likelihood of imminent
serious physical injury.'" (quoting Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.
2003))).
Plaintiff fails to meet his burden. In an attempt to satisfy the imminent danger
exception. Plaintiffrelies on the eleven physical assaults he allegedly endured while housed
at Five Points. {See Dkt. 93 at 26). These alleged assaults occurred on March 30, 2010,
May 10, 2010, May 29, 2010, September 10, 2010, November 21, 2010, December 18,
2010, February 21, 2011, March 21, 2011, September 27, 2011, December 5, 2011, and
January 17, 2012. {Id.-, see Dkt. 46 at
122-23, 151, 164, 174, 212, 246, 302, 333; Dkt.
93-5 at 16; Dkt. 93-9 at 2-4). Nevertheless, a review of Defendants' medical evidence
undermines the plausibility ofPlaintiffs allegations. See Shepherd, 921 F.3d at 96.
For example, on March 30, 2010, Plaintiff alleges that correctional officers Barry
Countryman ("C.O. Countryman") and Jacob Smith ("C.O. Smith") "removed Plaintiff
from the sick-call room,[and] used violent and excessive force in smashing Plaintiff into
the floor face first," before continuing to "physically and verbally assault[] Plaintiff while
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Plaintiff was on the floor." (Dkt. 46 at J 123). Correctional officer Richard Cioffa("C.O.
Cioffa"), along with C.O. Countryman and C.O. Smith, "grabbed Plaintiff and violently
pushed him into a wall" while they transferred Plaintiff to a prison cell. (Id). The
correctional officers also "tightened Plaintiffs handcuffs such that they cut Plaintiffs
wrists." (Id.). Allegedly, correctional sergeants T. Barber ("Sgt. Barber") and Richard
Goodliff("Sgt. Goodliff')"were present," but they failed to intervene. (Id. at ^ 122).
Plaintiffs allegations are contradicted by his medical records.
A review of
Plaintiffs medical progress note for March 30, 2010, indicates that he told medical staff
that he had been subjected to excessive force and was experiencing pain in his arm, face,
and wrist. (Dkt. 59-10 at 134). However,the medical evaluation notes reveal that Plaintiff
exhibited "no visible injuries," no edema, and no redness upon examination. (Id.). Despite
raising similar subjective complaints the following day. Plaintiff again exhibited no signs
of swelling or deformity. (Id.).
Plaintiff further alleges that four correctional officers punched him and beat him
with sticks on May 10, 2010(Dkt. 46 at ^ 151), but the medical progress note for May 11,
2010, indicates that Plaintiff had been previously observed "banging on [his] cell door"
and "punching" himself(Dkt. 59-10 at 127). Plaintiffs medical examination revealed only
a "slightly red area" on his chest and arm. (Id.). This de minimis injury recorded by
medical personnel in no way reflects Plaintiffs assertion that four correctional officers
punched him and beat him with sticks. Similarly, Plaintiff alleges that Sgt. Barber and
nurse T. Carroll ("Nurse Carroll") "verbally harassed him, threatened him with physical
assault, and physically assaulted him" while escorting him to the infirmary on May 29,
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2010. (Dkt. 46 at ^ 164). Again, the medical progress note for June 1, 2010, reveals no
signs of injury. (Dkt. 59-10 at 121).
On September 10, 2010, unidentified correctional officers at the Downstate
Correctional Facility ("Downstate") allegedly "used force to place [Plaintiff] on the bus"
to transfer him back to Five Points, and then "Downstate staffs' reports covered up this
incident." (Dkt.46 at Tf 174). Not only does Plaintiff fail to explain how any ofthe named
defendants in this action were involved in this alleged assault, but the medical progress
note dated September 10, 2010, reveals that Plaintiff"refused to be seen" by Five Points
medical staff, and it does not otherwise indicate that he suffered any bodily harm. (Dkt.
59-10 at 115).
Next, Plaintiff alleges that on November 21, 2010, nurse Kimberly Cheasman
("Nurse Cheasman")came to his cell and hit his hands and fingers with a bucket. (Dkt. 46
at ^ 212). However, the medical progress note dated November 22, 2010, reveals that
Plaintiff could move his hands without difficulty. (Dkt. 59-10 at 110). Indeed, Plaintiff
refused to unwrap his hands to display any injuries and became angry and verbally
aggressive when asked to do so. {Id.). Plaintiff also alleges that Nurse Cheasman visited
his cell again on December 18, 2010, in order to physically assault him. {See Dkt. 46 at
246). Plaintiff claims that she slammed the prison cell door hatch on his left arm when
he attempted to obtain his medications, and then she threatened to kill him. {Id.). The
medical progress note dated December 19,2010, does not suggest that Plaintiffcomplained
about any pain in his arm, and instead reveals that he complained only ofear pain and some
throat soreness. (Dkt. 59-10 at 100).
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Plaintiff alleges that similar incidents occurred on February 21, 2011, and March
21,2011. On both occasions, nurse Annette Holm allegedly slammed the prison cell door's
feeding hatch on Plaintiffs arm multiple times. (See Dkt. 46 at
302, 333). Although
Plaintiff apparently raised some complaints of pain in his right arm, his medical
examination conducted on February 23, 2011, revealed "no deformity,""no edema," and
"no visible injury" to his arm. (Dkt. 59-10 at 96). Additionally, the medical progress note
for March 21,2011, did not indicate that Plaintiff complained of pain in his arm at all, and
it revealed that he had recently "refused" his prescription and was "described as being
physically active in a way which is inconsistent with being in significant pain." (Id. at 91).
Lastly, Plaintiff alleges that he was physically assaulted by C.O. Countryman,
correctional sergeant Remy Babineaux,and correctional sergeant D. Gleason on September
27,2011, December 5, 2011, and, with "other guards," on January 17,2012. (Dkt. 93-9 at
1). Those "other guards" included Sgt. Goodliff, "Sgt Haff," Nurse Carroll, correctional
officer VanHom, "C.O. G. Hinman," "C.O. S. White," "C.O. M. Jenkins," "C.O. T.
Casper," and "C.O. B. Schmitt." (Id. at 3). During the January encounter. Plaintiff alleges
that the correctional officers beat him,tortured him, and raped him with a baton from 9:50
A.M.to 12:45 P.M. (See id. at 2-4). While a review ofPlaintiffs medical records reveals
the presence of superficial injuries, the resulting medical findings fail to demonstrate the
presence of an imminent danger of serious physical injury.
For example, Plaintiffs September 27, 2011, medical progress note reveals that
Plaintiff became argumentative and physically threatening while in the sick-call room and
was then wrestled to the floor. (Dkt. 59-10 at 44). He did not appear to be in pain and
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exhibited full active and passive movement in both shoulders, elbows, and wrists. (Id.).
There appeared to be some red bruising on Plaintiffs shoulder and some soft tissue injuries
to his wrists, but there was no deep tenderness noted in Plaintiffs shoulder or any deformity
near his clavicle. {Id.).
The medical progress note recorded on December 6, 2011, discloses that a "red
area" and "superficial abrasions" were observed on Plaintiffs chest and back. {Id. at 22).
Although Plaintiff reported some tendemess to his chest, hips, shoulders, arms, wrists, and
outer right thigh, no evidence of any other injury was observed. {Id.). Plaintiff also
indicated that he was "vomiting blood" and that "blood [was] coming out [his] nose," but
the medical staff observed "no blood" in Plaintiffs oral cavity. {Id. at 23). The following
day. Plaintiff again complained of pain to his limbs, chest, and abdomen, but when he was
offered medication, he "refused all meds" and was observed walking about without any
apparent distress. {Id. at 22).
Finally, the medical progress note recorded for January 17, 2012, indicates that
Plaintiff was discovered in his prison cell with a cloth around his neck and red marks on
his neck. {Id. at 5). When Plaintiffs "cuffs were removed[,] he attacked" the prison staff.
{Id.). Medical personnel observed "abrasions" on Plaintiffs face and ankle, two "red
marks" on his abdomen,and a scratch to his left foot. {Id.). Although an x-ray was ordered.
Plaintiff was initially "non-compliant." {Id.). Plaintiffwas able to move his fingers despite
complaints of pain, and there was no indication of any swelling in his fingers. {Id.).
Plaintiff also complained of pain to his right wrist, and the area around that wrist appeared
red and swollen—consistent with handcuff marks. {Id.). X-rays were eventually taken of
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Plaintiffs face and revealed only superficial soft tissue swelling with no evidence of
"intracranial hemorrhages or brain parenchymal contusion injuries," or skull fractures.
(Dkt 59-11 at 27-30).
The subsequent medical progress notes dated January 18, 2012, and January 19,
2012, indicate that while Plaintiff was prescribed pain medications for facial pain, he also
refused to take his morning medications. (Dkt. 59-10 at 3-4). Plaintiffs January 21,2012,
medical note suggested that he sustained slight bruising to his ears and some swelling and
bruising to his eye lids. {Id. at 3). Although the whites ofPlaintiffs eyes were "bloody,"
there was no "evidence of trauma or foreign objects." {Id.). Plaintiffs rectum also
appeared "slightly red," but no excoriation or blood was noted and no "edema or
ecchymosis" was observed to his penis or scrotum. {Id.). The medical staff observed no
bruises to his scalp or his head. {Id.).
As demonstrated above. Defendants' medical evidence negates Plaintiffs
allegations of an imminent danger of serious physical injury. See Tafari, 2017 WL
1406274, at *3 ("Most importantly, [the pjlaintiffs allegations of daily constipation,
vomiting, blood in his urine, rectal bleeding, and stomach pain, are not borne out by the
medical records."); Jackson, 2014 WL 1323211, at *2 ("Plaintiffs medical records bely
many of his contentions."). In fact, the medical records amply demonstrate that Plaintiff
was prescribed pain medication on numerous occasions to quell any discomfort, even when
no injuries were observed. See Rieco v. Gilmore,No. 2:17-CV-0553,2018 WL 700266, at
*2(W.D. Pa. Feb. 5, 2018)("[T]he records reflect that Plaintiff was seen in the medical
clinic numerous times ... for skin abrasions and ulcers related to venous stasis for which
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he received medical treatment on numerous occasions."), appeal dismissed. No. 18-1542,
2018 WL 4372135 (3d Cir. Aug. 24, 2018); Towner v. Rao, No. 12-CV-6633-FPG, 2014
WL 4745920, at *3(W.D.N.Y. Sept. 23,2014)("[T]he record is replete with evidence that
DOCCS has treated him with medications for his pain during that time frame (albeit not to
J
his satisfaction)."). Furthermore, the imminent danger exception is not applicable simply
because Plaintiff may have complained of pain in several instances and was not prescribed
medication on any one given occasion. See Towner, 2014 WL 4745920, at *3 ("[I]t is
worth noting that courts considering allegations of discomfort or the lack of pain
medication have found them to not constitute an imminent danger."); Cerilli v. Murphy,
No.3:10-CV-421 SRU,2010 WL 7865032,at *2(D. Conn. Aug.20,2010)
("Allegation^
of pain and denial of pain medication have been held not to constitute an imminent danger
ofserious physical injury."); Ortiz v. Quarterman,No. 2:08-CV-0172,2008 WL 5024857,
at *3 (N.D. Tex. Nov. 21, 2008) ("At the time of filing, plaintiffs chief complaint
concerning his medical condition was that he had not received any medication for the pain
from his head, neck, shoulder, and back injuries. These allegations do not establish
plaintiff was in imminent danger of serious physical injury at the time offiling.").
Indeed, Plaintiffs allegations of continued violence, harassment, and physical and
emotional trauma do not demonstrate an imminent danger ofserious physical injury where
the medical records fail to reveal objective findings of serious harm and identify, at most,
only superficial injuries that do not suggest the severity necessary to invoke this exception.
See Denby v. Bosco, No.6;15CV876,2017 WL 1963629, at *4(E.D. Tex. May 11, 2017)
(noting that the plaintiff"points to nothing in the medical records confirming the existence"
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of his alleged "swelling and infection ofthe rectum," and the fact that he was "diagnosed
with bleeding hemorrhoids" did not place him in imminent danger of serious physical
injury), appeal dismissed, 719 F. App'x 405 (5th Cir. 2018); Abreu v. Lira, 2014 WL
4966911, at *10 (rejecting the plaintiffs contention that he was in imminent danger of
serious physical injury where the "plaintiffs medical records in and around December 3,
2012, do not reflect any indication that plaintiff was 'assaulted, beaten, and sexually
abused' by correctional officers at Upstate"); Taylor, 2010 WL 1963128, at *3 n.l (noting
that even if the court credited the occurrence of the alleged assault, "the injury alleged by
Taylor, some swelling on the back and sides of his head, is not sufficient to establish
imminent danger under 28 U.S.C. § 1915(g)"). In addition, a number of the medical
progress notes reveal that Plaintiffrefused medication or treatment following several ofthe
alleged assaults, further indicating that his subjective complaints of pain were inconsistent
with the violent conduct alleged in the Second Amended Complaint ("SAC") and his
supplemental papers. See Taylor, 2010 WL 1963128, at *3 ("The logical inference to be
drawn from Taylor's refusal to be examined is that he knew that such an examination would
disclose no evidence of an injury.").
The medical observations of"red marks," "abrasions," and "scratches" recorded in
some ofthe progress notes demonstrate the presence ofsuperficial injuries that fall far short
ofestablishing an imminent danger ofserious physical injury. See Bontemps v. Baker, No.
2:16-CV-2814-MCE-CMK, 2018 WL 4095922, at *2(E.D. Cal. Aug. 28, 2018)(finding
that the force used in applying handcuffs, resulting in "pain in [the plaintiffs] wri[s]ts and
marks on his skin" did not create an imminent danger of serious physical injury); Shove v.
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McDonald, No. 14-CV-02903-JD, 2015 WL 5693730, at *3 (N.D. Cal. Sept. 29, 2015)
("Nor do the allegations that the normal handcuffs cut his wrist or cause undue pressure
demonstrate possible serious physical injury."); Porter v. Sauve, No. 9:12-CV-0138
(MAD/ATB), 2012 WL 12925230, at *3 (N.D.N.Y. Mar. 21, 2012)(finding allegations
that the plaintiff "experienced handcuffs that were tight, and/or a pat frisk that was
'hard/rough'" insufficient to create an imminent danger ofserious physical injury);see also
Ball V. Famiglio, 726 F.3d 448, 470 n.30 (3d Cir. 2013)(finding that a single incident
where "prison officials used mace to secure [the plaintiff] after she refused to answer direct
orders" did not support an assertion ofimminent danger ofserious physical injury); AbdulAkbar, 239 F.3d at 315 & n.l (determining that the alleged use of pepper spray, repeated
acts of harassment, conspiracies to harm him, and "other forms of retaliation" did not
establish that the plaintiff was in imminent danger ofserious physical injury). The medical
progress notes recorded after the incident allegedly taking place on January 17, 2012,
evince some notations suggestive of a possible physical assault. However, assuming that
Plaintiff was indeed assaulted on this occasion, the occurrence ofjust one assault—at least
one resulting in the medical observations recorded here—is insufficient to establish an
imminent danger of serious physical injury. See Taylor, 2010 WL 1963128, at *3 n.l.
Stated differently. Plaintiffs "medical records disclose no evidence of an injury consistent
with repeated assaults by correctional personnel as alleged" in his SAC and supplemental
pleadings. Id. at *3; see generally Liner v. Fischer, No. 11 Civ. 6711 (PAC), 2014 WL
5438037, at *2 (S.D.N.Y. Oct. 27, 2014)(noting that the jury need not determine the
credibility of the defendants' statements in "sworn affidavits and medical records" before
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the plaintiffs IFF status can be revoked);Kiddv. Thaler,No.9:llcvI8,2011 WL 6714527,
at *8(E.D.Tex. Aug.26,2011)("It should be noted that the courts have held that a prisoner
must allege specific facts showing that he is under imminent danger of serious physical
injury; general allegations not grounded in specific facts indicating that serious physical
injury is imminent are not sufficient to invoke the exception to § 1915(g)."), report and
recommendation adopted, 2011 WL 6713728(E.D. Tex. Dec. 21, 2011).
In sum. Defendants' medical evidence demonstrates that reexamination of the
Court's preliminary application of the imminent danger exception is warranted, and that
Plaintiffhas not established his entitlement to this exception. Accordingly,the Court grants
Defendants' motion to revoke Plaintiffs IFF status. (Dkt. 59). Plaintiff is required to pay
the $400.00 filing fee, with credit for any amounts previously collected from his prison
account, within 30 days of the date of this Decision and Order. IfPlaintiff fails to pay the
full filing fee, his case will be dismissed without prejudice without further order of the
Court.
At this time, the Court does not address Plaintiffs continued representation by pro
bono counsel, other than to note that counsel was assigned because ofPlaintiffs IFF status,
which is no longer the case. In addition, since Plaintiff failed to participate in the Courtordered status conference, it would appear that he is not cooperating with his assigned pro
bono counsel. Accordingly, Plaintiffs counsel may very well be entitled to an order
relieving them from this assignment, but the Court will not act in a sua sponte fashion in
that regard, and instead will address any such request if, in fact, a motion to withdraw is
filed.
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CONCLUSION
For the foregoing reasons, Defendants' motion to revoke Plaintiffs IFF status (Dkt.
59) is granted, and Plaintiffs IFF status is hereby revoked. Plaintiff is required to pay the
$400.00 filing fee, with credit for any amounts previously collected from his prison
account, within 30 days of the date of this Decision and Order. If Plaintiff fails to pay the
full filing fee, his case will he dismissed without prejudice without further order of the
Court.
SO ORDERED.
ELIZABETIJA. WOLFORD
UflftPa States District Judge
Dated:
November 25,2019
Rochester, New York
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