Loccenitt v. LaBrake et al

Filing 24

DECISION AND ORDER: Defendants' Motion to Revoke Plaintiff's IFP Status 10 is GRANTED. Plaintiff has until April 8, 2019 to pay the $400.00 filing and administrative fees. If Plaintiff does not timely pay the filing fees, his Compl aint will be dismissed without prejudice and the Clerk of Court will terminate this action without further order.SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 3/6/2019. Copies 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
___________________________________
KIAZA LOCCENITT,

Case # 18-CV-6175-FPG
Plaintiff,

DECISION AND ORDER

v.
C.O. T. LABRAKE, et al.,
Defendants.
___________________________________
INTRODUCTION
Pro se Plaintiff Kiaza Loccenitt filed this civil rights action asserting claims under 42
U.S.C. § 1983 and alleging that correction officers assaulted him and denied him medical treatment
for his injuries. ECF No. 1.1 The Court previously granted Plaintiff permission to proceed in
forma pauperis (“IFP”) under 28 U.S.C. § 1915(a)-(b). ECF No. 7. Defendants now move to
revoke Plaintiff’s IFP status pursuant to 28 U.S.C. § 1915(g) and to conditionally dismiss
Plaintiff’s Complaint pending payment of the filing fee. ECF No. 10. For the reasons that follow,
Defendants’ motion to revoke Plaintiff’s IFP status is GRANTED. Plaintiff has until April 8, 2019
to pay the $400.00 filing and administrative fees. If the fees are not timely paid, the Complaint
will be dismissed without prejudice and without further Court order.

1

In 2014, Plaintiff filed a Complaint against Defendant Correction Officers T. LaBrake, D. Vankelburg, D. Sagriff,
R. Maloy, J. Cook T. Ferguson, Sergeant P. Brinkeroff, and Nurse T. Jones. See Loccenitt v. LaBrake, Case # 14-CV6703-FPG (“First Action”). The First Action was dismissed because Plaintiff failed to exhaust his administrative
remedies as required by 42 U.S.C. § 1997e(a). Id. at ECF No. 50 (Feb. 12, 2018). In accordance with the Court’s
instruction set forth in the Order dismissing the First Action, Plaintiff filed this action on February 28, 2018 reasserting the claims set forth in the First Action.

1

DISCUSSION
I.

IFP Status
When an individual commences a civil action in a federal district court, he ordinarily must

pay the $350.00 statutory filing fee and $50.00 administrative fee.2 28 U.S.C. § 1915(a). Although
a court can allow a litigant to proceed IFP if he cannot pay the required filing fee, § 1915(g)
provides that
[i]n 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, 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.
Id. § 1915(g). This “three strikes” provision is meant to deter prisoners from filing multiple,
frivolous civil rights suits. Tafari v. Hues, 473 F.3d 440, 443-44 (2d Cir. 2007) (citing Nicholas
v. Tucker, 114 F.3d 17, 19 (2d Cir. 1997)). Thus, a prisoner who has accumulated three strikes
must apply the same cost-benefit analysis before filing suit that other civil litigants engage in—
that is, the prisoner must assess whether the result sought to be achieved justifies paying the $400
filing fee in advance. Tafari, 473 F.3d at 443. The Second Circuit has defined a frivolous claim
as one that “lacks an arguable basis either in law or in fact.” Id. at 442 (citing Neitzke v. Williams,
490 U.S. 319, 325 (1989)). To determine whether a dismissal satisfies the failure-to-state-a-claim
prong of § 1915, courts have looked to Federal Rule of Civil Procedure 12(b)(6) for guidance. Id.
The question of whether the dismissal of a prior action constitutes a strike for purposes of § 1915(g)
is a matter of statutory interpretation and thus is a question for the court. Id.

2

Effective May 1, 2013, the Judicial Conference of the United States added an administrative fee of $50.00 to the cost
of filing a civil lawsuit in district court. See September 2012 Report of the Proceedings of the Judicial Conference of
the United States, available at http://www.uscourts.gov/about-federal-courts/reports-proceedings-judicialconference-us. But this additional administrative fee does not apply to prisoners who are granted in forma pauperis
status. See generally id.

2

Defendants argue that before Plaintiff filed this case he already had three lawsuits
dismissed and that each dismissal constitutes a strike under § 1915(g).

ECF No. 10-1 at 2.

Defendants therefore seek to revoke Plaintiff’s IFP status and conditionally dismiss his Complaint.
Plaintiff argues that one of his dismissals is not a strike. ECF Nos. 18, 21.3
II.

Plaintiff’s “Strikes”
Plaintiff does not dispute that two of the cases Defendants identified, each filed in the

Southern District of New York, constitute strikes. On September 6, 2012, Plaintiff accrued his
first strike in Loccenitt v. Bloomberg, et al., Case # 11-CV-5651, when the court granted the
defendants’ Rule 12(b)(6) motion to dismiss Plaintiff’s complaint for failure to state a claim. ECF
No. 10 at 2. On November 14, 2012, Plaintiff accrued his second strike in Loccenitt v. Warden of
GRVC/CPSU, et al., Case # 12-CV-1350, when the court dismissed Plaintiff’s complaint pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii) for its failure to state a claim upon which relief can be granted.
ECF No. 10 at 2.
Defendants argue that, on December 29, 2014, Plaintiff accrued his third strike in Loccenitt
v. Pantea, Case # 12-CV-1356. ECF No. 10 at 2. There, the court granted the defendants’ Rule
12(b)(6) motion to dismiss the complaint for failure to state a claim. Id.; see Loccenitt v. Pantea,
No. 12 CIV. 1356 (AT), 2014 WL 7474232 (S.D.N.Y. Dec. 29, 2014). Plaintiff contends that the
dismissal in that case was not a strike because it was “dismissed due to a settlement agreement” in
Loccenitt v. City of New York, et al., Case # 12-CV-948, and claims Defendants are “using every
manner of trickery to dismiss this case before justice can be rendered for [their] wrongdoing.”
ECF No. 21 at 3.

3

In his Response, Plaintiff argues that Loccenitt v. City of New York, et al., Case # 10-CV-8319, was not a strike. ECF
No. 18 at 2-3. But that case is not one that Defendants claim constitutes a strike. ECF No. 10 at 2; ECF No. 20 at 1.

3

In February 2012, Plaintiff commenced Loccenitt v. City of New York, and he commenced
Pantea about three weeks later. Pantea, 2014 WL 7474242, at *1. In December 2013, Plaintiff
entered into a settlement agreement in Loccenitt v. City of New York which, in relevant part,
“released the City of New York and its past and present officials, employees, representatives, and
agents from any and all claims that were asserted, alleging a violation of Plaintiff’s civil rights
from the beginning of the world to the date of the Release.” Id. at *1, 3 (internal quotation marks,
brackets, and ellipses omitted). Plaintiff then continued to pursue his claims in Pantea against the
prison’s acting physician. Id. In granting the defendant’s Rule 12(b)(6) motion to dismiss, the
Pantea court ultimately found that the defendant “qualifies as a City agent” and that “the prior
settlement agreement bars this action.” Id. at *3.
Plaintiff argues that the Pantea dismissal is not a strike for purposes of § 1915(g) because
it was dismissed “due to the settlement.” ECF No. 21 at 3. But a dismissal pursuant to Rule
12(b)(6) for failure to state a claim constitutes a strike. See Tafari, 473 F.3d at 442 (noting that
“the phrase ‘fails to state a claim on which relief may be granted’” as used in § 1915(g) is an
“explicit reference” to Rule 12(b)(6)). Thus, the Court finds that the three dismissals Defendants
cite constitute “strikes” under § 1915(g).
Accordingly, pursuant to the mandate of 28 U.S.C. § 1915(g), the Court must revoke
Plaintiff’s IFP status unless he has claimed to be under imminent danger of serious physical injury;
however, Plaintiff has made no such allegations here.
CONCLUSION
Defendants’ Motion to Revoke Plaintiff’s IFP Status (ECF No. 10) is GRANTED. Plaintiff
has until April 8, 2019 to pay the $400.00 filing and administrative fees. If Plaintiff does not

4

timely pay the filing fees, his Complaint will be dismissed without prejudice and the Clerk of Court
will terminate this action without further order.
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 leave to appeal to the Court of Appeals as a poor
person is denied. See Coppedge v. United States, 369 U.S. 438 (1962). Plaintiff should direct
requests to proceed on appeal as a poor person 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: March 6, 2019
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

5