McFadden v. Annucci et al

Filing 57

DECISION AND ORDER: Defendants' Motion 48 is GRANTED IN PART and DENIED IN PART. Specifically, the Court REVOKES Plaintiff's IFP status and he has until March 29, 2019 to pay the $400.00 in filing fees. If Plaintiff does not pay th e filing fees by that date, the Third Amended Complaint will be dismissed without prejudice under 28 U.S.C. § 1915(g) and the Clerk of Court will terminate this action without further order. Defendants may renew their Motion to Dismiss if Plain tiff pays the filing fees as directed. Plaintiff's Motion to Consolidate 56 is DENIED.SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 2/22/2019. A copy of this NEF and Decision and Order have been mailed to the pro se Plaintiff. (AFM)-CLERK TO FOLLOW UP-

PS

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
REGINALD GHAFFAR MCFADDEN,
Plaintiff,

Case # 16-CV-6105-FPG

v.
DECISION AND ORDER
ANTHONY J. ANNUCCI, JR., et al.,
Defendants.
__________________________________
INTRODUCTION AND BACKGROUND
Pro se Plaintiff Reginald Ghaffar McFadden, an inmate currently confined at Attica
Correctional Facility, filed this action seeking relief under 42 U.S.C. § 1983. Plaintiff originally
filed this action in the Northern District of New York with an in forma pauperis (“IFP”) motion.
See McFadden v. Annucci, 9:15-CV-1354 (DNH/DEP). ECF No. 1. The Northern District severed
certain claims concerning events that allegedly occurred at the Attica and Southport Correctional
Facilities and transferred them to this Court. ECF No. 12 at 10-13. In the same order transferring
those claims to this Court, the Northern District made a preliminary finding that Plaintiff had
“sufficiently alleged that he was ‘under imminent danger of serious physical injury’ when he filed
this action[]” and granted Plaintiff permission to proceed IFP. Id. at 6.
On September 24, 2018, Defendants moved to dismiss the Third Amended Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) and to revoke Plaintiff’s IFP status. ECF No.
48. For the reasons that follow, Defendants’ Motion is GRANTED IN PART and DENIED IN
PART. Specifically, the Court revokes Plaintiff’s IFP status and denies Defendants’ Motion to
Dismiss, with leave to renew if Plaintiff pays the $400.00 in filing fees in accordance with this
Order. Plaintiff also moved to consolidate this case with McFadden v. Koenigsman, Case # 18-

CV-6684, which is also pending dismissal for failure to pay the filing fees. ECF No. 56. Plaintiff’s
Motion is DENIED.
DISCUSSION
I.

Legal Standard
Pursuant to 29 U.S.C. § 1915, a prisoner who has “on 3 or more 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” may not
proceed IFP “unless [he] is under imminent danger of serious physical injury.” 29 U.S.C. §
1915(g). In other words, when a prisoner has garnered three “strikes,” as they are commonly
known, the IFP motion must be denied unless the plaintiff has asserted claims indicating that he is
in imminent danger of serious physical injury. In that regard, the Court must determine whether a
plaintiff with three strikes was in imminent danger when he filed the complaint. See Malik v.
McGinnis, 293 F.3d 559, 563 (2d Cir. 2002). “When a Court learns of a plaintiff’s prior
disqualifying suits (i.e., ‘strikes’), it may revoke IFP status and dismiss the complaint.”
Southerland v. Patterson, No. 10 CV 09155 BSJ RLE, 2012 WL 208105, at *1 (S.D.N.Y. Jan. 23,
2012) (citing Harris v. City of New York, 607 F.3d 18, 23 (2d Cir. 2010)). In fact, “district courts
may apply the three strikes rule sua sponte.” Harris, 607 F.3d at 23.
II.

Plaintiff’s Three-Strikes Status
In seeking revocation of Plaintiff’s IFP status, Defendants correctly note that there is no

question in this Court, and others, that Plaintiff garnered at least three strikes as far back as 20
years ago. ECF No. 17; see McFadden v. Parpan, 16 F. Supp. 2d 246, 247 (E.D.N.Y. 1998)
(dismissing Plaintiff’s action where the court subsequently realized that IFP status had been
improvidently granted); McFadden v. Annucci, No. 13-CV-0559, 2014 WL 824207, at *1

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(W.D.N.Y. Feb. 28, 2014). Therefore, Plaintiff can maintain his IFP status only if he was in
imminent danger of serious physical injury when he commenced this action. See Malik, 293 F.3d
at 563.
III.

Imminent Danger of Serious Physical Injury
The Court now considers whether Plaintiff’s allegations in this case support a finding that

he was in imminent danger of serious physical injury when he filed the Complaint. Upon
transferring this case, the Northern District made a “preliminary finding” that Plaintiff was
entitled to IFP status based on his allegation that he was “denied adequate medical care for his
serious medical needs at Attica C.F., including treatment for Hepatitis C.” ECF No. 12 at 6
(emphasis in original). The Northern District noted, however, that “[P]laintiff’s [IFP] status may
be revoked if, as the case progresses, it is determined that he did not face imminent danger of
serious physical injury when he commenced this action or is otherwise not entitled to” IFP
treatment. Id.
The Second Circuit has instructed that “[a]n imminent danger is not one ‘that has dissipated
by the time a complaint is filed,’ rather it must be one ‘existing at the time the complaint is filed.’”
See Chavis v. Chappius, 618 F.3d 162, 169 (2d Cir. 2010) (internal citation omitted) (quoting
Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009) and Malik, 293 F.3d at 563); see also
Akassy v. Hardy, 887 F.3d 91, 96 (2d Cir. 2018) (explaining that “it is not sufficient to allege that
‘harms . . . had already occurred’”) (quoting Malik, 293 F.3d at 563).
While § 1915(g) presents “only a threshold procedural question” that does not require “an
overly detailed inquiry into . . . the allegations,” the fear of a serious physical injury must be
alleged. See Chavis, 618 F.3d at 169 (quoting Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th
Cir. 2007)). There must “be a nexus between the imminent danger” alleged “and the legal claims

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asserted in his complaint.” Pettus, 554 F.3d at 297. To assess whether the nexus exists, courts
look to “(1) whether the imminent danger of serious physical injury that a three-strikes litigant
alleges is fairly traceable to unlawful conduct asserted in the complaint and (2) whether a favorable
judicial outcome would redress that injury.” Id. at 298-99 (emphasis in original).
Here, the Court finds that Plaintiff’s allegations do not support a finding that he was in
imminent danger of serious physical injury when he filed the Complaint. Plaintiff asserts that he
was denied adequate medical care and treatment for long-standing medical conditions, namely
Hepatitis C. Upon review of the pleadings, the Court notes that these allegations are “strikingly
similar” to those made in multiple prior actions that Plaintiff filed. McFadden v. Annucci, 2014
WL 824207, at *1 (citing McFadden v. Patterson, 9:10-CV-00127 (TJM/DEP) (N.D.N.Y. June
22, 2010) (claims that Plaintiff was not receiving adequate medical care for Hepatis C and needed
a hearing aid were “patently insufficient to demonstrate that he faced an imminent danger of
serious physical harm”) (internal quotation marks omitted); see also McFadden v. Annucci, No.
9:05CV1235, 2005 WL 3359079, at *2 (N.D.N.Y. Dec. 8, 2005) (Plaintiff’s allegation that he was
denied Hepatitis C treatment since 1995 did not constitute imminent danger of serious physical
injury).
The Court finds that Plaintiff’s claims in this case are merely conclusory attempts to reallege medical conditions that other courts have repeatedly found do not demonstrate imminent
danger. Plaintiff’s broad assertions concerning his Hepatitis C treatment and the denial or delay
of medical appointments and medications do not plausibly allege that Plaintiff was in imminent
danger of serious harm. While Hepatitis C clearly presents a serious medical need, Plaintiff does
not allege any imminent danger during the relevant period.

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CONCLUSION
For the reasons stated, Defendants’ Motion (ECF No. 48) is GRANTED IN PART and
DENIED IN PART. Specifically, the Court REVOKES Plaintiff’s IFP status and he has until
March 29, 2019 to pay the $400.00 in filing fees. If Plaintiff does not pay the filing fees by that
date, the Third Amended Complaint will be dismissed without prejudice under 28 U.S.C. § 1915(g)
and the Clerk of Court will terminate this action without further order. Defendants may renew
their Motion to Dismiss if Plaintiff pays the filing fees as directed.

Plaintiff’s Motion to

Consolidate (ECF No. 56) is DENIED.
The Court certifies pursuant to 28 U.S.C. § 1915(a) that any appeal from this Order would
not be taken in good faith and denies leave to appeal to the Court of Appeals as a poor person.
Coppedge v. United States, 369 U.S. 438 (1962). Plaintiff should direct further requests to proceed
on appeal IFP to the United States Court of Appeals for the Second Circuit on motion in accordance
with Federal Rule of Appellate Procedure 24.
IT IS SO ORDERED.
Dated: February 22, 2019
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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