Opinion
Civ. 3:21CV01347(SALM)
04-29-2022
JOHN S. KAMINSKI v. DR. BYRON KENNEDY, DR. JOHNNY WRIGHT, DR. CORY FRESTON, and APRN JEAN CAPLON
RULING ON DEFENDANTS' MOTION TO REVOKE PLAINTIFF'S IN FORMA PAUPERIS STATUS (Doc. #22)
SARAH A. L. MERRIAM, UNITED STATES DISTRICT JUDGE
Self-represented plaintiff John S. Kaminski (“plaintiff”), a sentenced inmate at MacDougall-Walker Correctional Institution, brought this action relating to events occurring during his incarceration in the custody of the Department of Correction (“DOC”). Plaintiff proceeds in forma pauperis (“IFP”). See Doc. #9. Defendants filed a motion to revoke plaintiff's IFP status. See Doc. #22. For the reasons set forth below, defendants' motion is GRANTED.
The Court may take judicial notice of matters of public record. See, e.g., Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006); United States v. Rivera, 466 F.Supp.3d 310, 313 (D. Conn. 2020) (taking judicial notice of BOP inmate location information); Ligon v. Doherty, 208 F.Supp.2d 384, 386 (E.D.N.Y. 2002) (taking judicial notice of state prison website inmate location information). The Court takes judicial notice of the Connecticut DOC website, which reflects that plaintiff was sentenced on April 11, 2006, to a term of imprisonment that has not yet expired. See http://www.ctinmateinfo.state.ct.us/detailsupv.asp?idinmtnum=2 41124 (last visited Apr. 28, 2022).
I. PROCEDURAL BACKGROUND
On October 12, 2021, plaintiff filed a motion for leave to proceed IFP that certified he was “unable to pay the filing fee” for this case. Doc. #2 at 1. On October 15, 2021, Judge Thomas O. Farrish issued a “Notice to petitioner re: Insufficiency” and ordered plaintiff to “submit a Ledger sheet showing the past six months transactions.” Doc. #7. On October 20, 2021, plaintiff submitted a “Trust Account Statement” for the time period of April 1, 2021, to October 20, 2021. Doc. #8 at 3. On November 1, 2021, Judge Farrish granted plaintiff's motion for leave to proceed IFP. See Doc. #9.
On January 13, 2022, the Court conducted an initial review of plaintiff's Complaint pursuant to 28 U.S.C. §1915A, and dismissed plaintiff's Complaint in its entirety for failure to comply with Federal Rule of Civil Procedure 8. See Doc. #13 at 7-10. On January 28, 2022, plaintiff filed an Amended Complaint against Dr. Byron Kennedy, Dr. Johnny Wright, Dr. Cory Freston, and APRN Jean Caplon, in their official capacities only, seeking injunctive relief. See Doc. #14 at 1-2. The Court conducted an initial review of the Amended Complaint, and construed it “as bringing a claim for deliberate indifference to serious medical needs, in violation of the Eighth Amendment[,]” requesting the following injunctive relief: “that (1) his medical history be reviewed by an independent provider; (2) that any necessary neurosurgical procedures be performed by an independent provider; and (3) that the Court ‘assign an advocate to him[.]'” Doc. #15 (quoting Doc. #14 at 10). The Court permitted the Amended Complaint to “proceed to service on the named defendants, in their official capacities only.” Id.
On March 24, 2022, defendants moved to revoke plaintiff's IFP status, asserting that plaintiff should not be permitted to proceed IFP because he is barred by the “three-strikes rule” pursuant to 28 U.S.C. §1915(g). See Doc. #22 at 1-2. Plaintiff filed a response to defendants' motion, see Docs. #27, #29,and an addendum to his response. See Doc. #28.
Doc. #29 is a duplicate of Doc. #27.
II. DISCUSSION
Defendants assert that plaintiff's IFP status should be revoked under section 1915(g) because
he “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.” 28 U.S.C. §1915(g).Doc. #22 at 1. Defendants request that all proceedings in this matter be held in abeyance for twenty days pending plaintiff's payment of the filing fee, and that the Court dismiss this action if he fails to do so. See id. at 2. Plaintiff responds that he is “in imminent danger” of having additional unwanted surgery, apparently seeking to invoke the “imminent danger” exception to the three-strikes rule. Doc. #28 at 1 (quotation marks omitted).
“To help staunch a ‘flood of nonmeritorious' prisoner litigation, the Prison Litigation Reform Act of 1995 (PLRA) established what has become known as the three-strikes rule.” Lomax v. Ortiz-Marquez, 140 S.Ct. 1721, 1723 (2020) (citing Jones v. Bock, 549 U.S. 199, 203 (2007)). The PLRA amended 28 U.S.C. §1915 by adding the following subsection:
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, 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.28 U.S.C. §1915(g). Thus, a prisoner may not bring an action without prepayment of the filing fee if he has filed three or more cases that have been dismissed as “frivolous, malicious, or [for] fail[ure] to state a claim upon which relief may be granted,” and he is not under “imminent danger of serious physical injury.” Id.; see also Akassy v. Hardy, 887 F.3d 91, 93-96 (2d Cir. 2018). “A dismissal of a suit for failure to state a claim counts as a strike, whether or not with prejudice.” Lomax, 140 S.Ct. at 1727. However, no strike accrues if the Court affords plaintiff leave to amend the complaint. Id. at 1724 n.4.
In support of their motion, defendants cite the following cases previously filed by plaintiff that were dismissed on initial review for failure to state a claim: Kaminski v. Colon, 3:18CV02099(SRU), 2019 WL 1258919 (D. Conn. Mar. 19, 2019) (dismissed with prejudice); Kaminski v. Semple, No. 3:19CV00143(SRU), 2019 WL 1454950 (D. Conn. Apr. 2, 2019) (dismissed without leave to amend), aff'd, 796 Fed.Appx. 36 (2d Cir. 2019); Kaminski v. Oniyuke, 3:19CV00058(SRU), Doc. #15 (D. Conn. June 10, 2019) (dismissed with prejudice), appeal dismissed No. 19-2069 (2d Cir. September 4, 2019). Plaintiff does not dispute that these three cases were dismissed or that, as a result, he is subject to the three-strikes rule.
Because plaintiff has had at least three actions dismissed for failure to state a claim without leave to amend, plaintiff is subject to the three-strikes rule. See 28 U.S.C. §1915(g). Accordingly, defendants' motion to revoke plaintiff's IFP status is GRANTED.
However, a plaintiff that is subject to the three-strikes rule may “obtain IFP status” if he “seek[s] to redress an imminent danger of serious physical injury” that is “fairly traceable to a violation of law alleged in the complaint.” Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009) .
Plaintiff's response to defendants' motion asserts that he qualifies for the “imminent danger” exception to the three-strikes rule, because he is “in imminent danger” of being “cut ... once again[]” by “UCONN Health Center surgical staff[,]” referring, it appears, to unwanted surgery. Doc. #28 at 1 (quotation marks omitted). He further asserts that he is seeking only injunctive relief to prevent this alleged imminent harm from occurring. See id. Thus, plaintiff has alleged that he is at risk of imminent danger, and that there is a nexus between the imminent danger and the claims he has asserted. See Pettus, 554 F.3d at 297-98.
Accordingly, the Court construes plaintiff's response as a motion for leave to proceed IFP pursuant to the “imminent danger” exception to the three-strikes rule. Defendants shall file any response to plaintiff's assertion that he qualifies for the “‘imminent danger' exception permitting so-called three-strike litigants to proceed IFP[,]” id. at 296, on or before May 20, 2022. If plaintiff wishes to reply, he may do so on or before June 3, 2022. The Court will then determine whether plaintiff qualifies for the “imminent danger” exception such that he may proceed IFP.
III. CONCLUSION
For the foregoing reasons, defendants' Motion to Revoke Plaintiff's IFP Status [Doc. #22] is GRANTED. All deadlines are hereby STAYED pending the Court's determination of plaintiff's eligibility for IFP status. The Court will set a revised scheduling order at that time.
It is ORDERED this 29th day of April, 2022, at New Haven, Connecticut.