Opinion
3:24-CV-0102 (GTS/ML)
01-26-2024
DAVID C. LETTIERI, Plaintiff, v. DAVID GASKA, in their individual and official capacities; KAREN MASTON, in their individual and official capacities; BROOME CNTY. HUMANE SOC'Y, in their official capacity; and DEP'T OF JUSTICE, in their official capacity, Defendants.
DAVID C. LETTIERI Plaintiff, Pro Se.
DAVID C. LETTIERI Plaintiff, Pro Se.
ORDER AND REPORT-RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE.
I. BACKGROUND
A. Procedural History
Plaintiff David C. Lettieri (“Plaintiff”) commenced this civil rights action pro se on January 22, 2024, on a form complaint alleging that his rights were violated by Defendants David Gaska, Karen Maston, the Broome County Humane Society, and the Department of Justice (collectively “Defendants”). (Dkt. No. 1.) Plaintiff did not pay the filing fee for this action and seeks leave to proceed in forma pauperis (“IFP”). (Dkt. Nos. 2, 3.)
B. Complaint
Construed as liberally as possible, Plaintiff's Complaint appears to allege that on November 5, 2020, the Federal Bureau of Investigations, New York State Police, Broome County Sheriff's Department, and Broome County Humane Society broke into Plaintiff's house and stole his dog. (Dkt. No. 1 at 14.) The Complaint alleges that there was no search warrant to seize Plaintiff's dog. (Id.) Based on these factual allegations, Plaintiff appears to assert the following five claims: (1) a claim of unlawful search and seizure; (2) a claim that his due process rights were violated; (3) a claim of excessive fines; (4) a claim of ineffective assistance of counsel; and (5) a claim that Defendants violated various sections of the New York Agric. & Mkts. Law. (Id. at 3.) As relief, Plaintiff seeks $1,000,000,000 in damages. (Id. at 5.)
The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
Plaintiff seeks leave to proceed IFP. (Dkt. No. 2.)
II. PLAINTIFF'S APPLICATION TO PROCEED IFP
Where a plaintiff seeks leave to proceed IFP, the Court must determine whether the plaintiff has demonstrated sufficient economic need to proceed without prepaying, in full, the Court's filing fee of four hundred and five dollars ($405.00). The Court must also determine whether the “three strikes” provision of 28 U.S.C. § 1915(g) (“Section 1915(g)”) bars the plaintiff from proceeding IFP and without prepayment of the filing fee. More specifically, Section 1915(g) provides as follows:
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). If the plaintiff is indigent and not barred by Section 1915(g), the Court must consider the sufficiency of the claims stated in the complaint in accordance with 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A.
In this case, Plaintiff has failed to demonstrate economic need through his IFP application, because he failed to answer questions numbered 2 through 6 on the prisoner IFP application. (Dkt. No. 2 at ¶¶ 2-6.) As a result, the undersigned could deny Plaintiff's IFP application without prejudice on this basis alone. However, as will be discussed below, because Plaintiff has three strikes and his Complaint does not allege that he was in imminent danger at the time of filing, his IFP application is denied with prejudice.
Plaintiff has filed the inmate authorization form required in the Northern District of New York. (Dkt. No. 3.) Thus, the Court must determine whether the “three strikes” rule of Section 1915(g) bars Plaintiff from proceeding with this action IFP.
A. Determination of “Strikes”
Plaintiff is a frequent litigator, having commenced, in addition to this action, at least seventy-seven civil actions in the federal district courts since 2022. See PACER Case Locator <https://pcl.uscourts.gov/pcl/pages/search/findParty.jsf> (last visited January 23, 2024). The following is a list of those actions: (1) Lettieri v. Facebook, No. 23-CV-6554 (N.D. Cal. filed Dec. 20, 2023); (2) Lettieri v. Fed. Bureau of Investigation, (N.D.N.Y. filed Aug. 30, 2023); (3) Lettieri v. Northeast Ohio Corr. Cent., No. 23-CV-1136 (N.D.N.Y. filed Sept. 5, 2023); (4) Lettieri v. Dep't of Justice, No. 23-CV-1272 (N.D.N.Y. filed Oct. 12, 2023); (5) Lettieri v. Garver, No. 23-CV-1421 (N.D.N.Y. filed Nov. 15, 2023); (6) Lettieri v. Brigueal, No. 23-CV-1597 (N.D.N.Y. filed Dec. 18, 2023); (7) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0309 (W.D.N.Y. filed Apr. 6, 2023); (8) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0318 (W.D.N.Y. filed Apr. 10, 2023); (9) Lettieri v. United States Fed. Marshals, No. 23-CV-0246 (W.D.N.Y. filed Mar. 20, 2023); (10) Lettieri v. Fed. Marshals, No. 23-CV-0359 (W.D.N.Y. filed Apr. 24, 2023); (11) Lettieri v. Auricchio, No. 23-CV-0441 (W.D.N.Y. filed May 17, 2023); (12) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0442 (W.D.N.Y. filed May 17, 2023); (13) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0471 (W.D.N.Y. filed May 30, 2023); (14) Lettieri v. Daniels, No. 23-CV-0487 (W.D.N.Y. filed June 5, 2023); (15) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0503 (W.D.N.Y. filed June 7, 2023); (16) Lettieri v. Univ. of Rochester, No. 23-CV-0504 (W.D.N.Y. filed June 7, 2023); (17) Lettieri v. Town of Colesville, No. 23-CV-0519 (W.D.N.Y. filed June 9, 2023); (18) Lettieri v. Dep't of Justice, No. 23-CV-0517 (W.D.N.Y. filed June 9, 2023); (19) Lettieri v. New York State Police, No. 23-CV-0518 (W.D.N.Y. filed June 9, 2023); (20) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0679 (W.D.N.Y. filed July 12, 2023); (21) Lettieri v. Dep't of Justice, No. 23-CV-0697 (W.D.N.Y. filed July 14, 2023); (22) Lettieri v. Dep't of Justice, No. 23-CV-0698 (W.D.N.Y. filed July 14, 2023); (23) Lettieri v. Dep't of Justice, No. 23-CV-0699 (W.D.N.Y. filed July 14, 2023); (24) Lettieri v. Dep't of Justice, No. 23-CV-0696 (W.D.N.Y. filed July 14, 2023); (25) Lettieri v. Dep't of Justic [sic], No. 23-CV-0695 (W.D.N.Y. filed July 14, 2023); (26) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0708 (W.D.N.Y. filed July 17, 2023); (27) Lettieri v. Dep't of Justice, No. 23-CV-0704 (W.D.N.Y. filed July 17, 2023); (28) Lettieri v. Dep't of Justice, No. 23-CV-0707 (W.D.N.Y. filed July 17, 2023); (29) Lettieri v. Dep't of Justice, No. 23-CV-0705 (W.D.N.Y. filed July 17, 2023); (30) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0706 (W.D.N.Y. filed July 17, 2023); (31) Lettieri v. Dep't of Justice, No. 23-CV-0721 (W.D.N.Y. filed July 19, 2023); (32) Lettieri v. Dep't of Justice, No. 23-CV-0722 (W.D.N.Y. filed July 19, 2023); (33) Lettieri v. Broome Cnty. Humane Soc'y, No. 23-CV-0747 (W.D.N.Y. filed July 26, 2023); (34) Lettieri v. Dep't of Justice, No. 23-CV-0749 (W.D.N.Y. filed July 26, 2023); (35) Lettieri v. Fed. Public Def., No. 23-CV-0748 (W.D.N.Y. filed July 26, 2023); (36) Lettieri v. Suffolk Cnty. Police, No. 23-CV-0757 (W.D.N.Y. filed July 27, 2023); (37) Lettieri v. Dep't of Justice, No. 23-CV-0762 (W.D.N.Y. filed July 28, 2023); (38) Lettieri v. Dep't of Justice, No. 23-CV-0771 (W.D.N.Y. filed July 31, 2023); (39) Lettieri v. Dep't of Justice, No. 23-CV-0774 (W.D.N.Y. filed Aug. 1, 2023); (40) Lettieri v. W. Dist. of New York, No. 23-CV-0770 (W.D.N.Y. filed July 31, 2023); (41) Lettieri v. Dep't of Justice, No. 23-CV-0788 (W.D.N.Y. filed Aug. 4, 2023); (42) Lettieri v. Daniels, No. 23-CV-0867 (W.D.N.Y. filed Aug. 21, 2023); (43) Lettieri v. Dep't of Justice, No. 23-CV-0865 (W.D.N.Y. filed Aug. 21, 2023); (44) Lettieri v. Dep't of Justice, No. 23-CV-0866 (W.D.N.Y. filed Aug. 21, 2023); (45) Lettieri v. Auricchio, No. 23-CV-0875 (W.D.N.Y. filed Aug. 22, 2023); (46) Lettieri v. Vilardo, No. 23-CV-6498 (W.D.N.Y. filed Aug. 28, 2023); (47) Lettieri v. Four in One, No. 23-CV-0898 (W.D.N.Y. filed Aug. 28, 2023); (48) Lettieri v. Dep't of Justice, No. 23-CV-0897 (W.D.N.Y. filed Aug. 28, 2023); (49) Lettieri v. Olivett Prods., No. 23-CV-0906 (W.D.N.Y. filed Aug. 30, 2023); (50) Lettieri v. Reynolds, No. 23-CV-0925 (W.D.N.Y. filed Sept. 1, 2023); (51) Lettieri v. Bonanno, No. 23-CV-1081 (W.D.N.Y. filed Oct. 6, 2023); (52) Lettieri v. Post Consumer Brands, No. 23-CV-1080 (W.D.N.Y. filed Oct. 6, 2023); (53) Lettieri v. Powell, No. 23-CV-1082 (W.D.N.Y. Oct. 6, 2023); (54) Lettieri v. Aurrichio, No. 23-CV-1121 (W.D.N.Y. Oct. 25, 2023); (55) Lettieri v. Hockwater, No. 23-CV-1123 (W.D.N.Y. Oct. 25, 2023); (56) Lettieri v. City of Binghamton, No. 23-CV-1122 (W.D.N.Y. filed Oct. 25, 2023); (57) Lettieri v. The Broome Cnty. Humane, No. 23-CV-1223 (W.D.N.Y. filed Nov. 22, 2023); (58) Lettieri v. Keefe Grp., No. 23-CV-1224 (W.D.N.Y. filed Nov. 22, 2023); (59) Lettieri v. City of Binghamton, No. 23-CV-1243 (W.D.N.Y. filed Nov. 29, 2023); (60) Lettieri v. Broome Cnty. Humane Soc'y, No. 23-CV-1268 (W.D.N.Y. filed Dec. 7, 2023); (61) Lettieri v. Broome Cnty. Humane Soc'y, No. 23-CV-1270 (W.D.N.Y. filed Dec. 7, 2023); (62) Lettieri v. Wyoming Cnty. Sheriffs, No. 23-CV-1303 (W.D.N.Y. filed Dec. 18, 2023); (63) Lettieri v. Fed. Marshals, No. 23-CV-1305 (W.D.N.Y. filed Dec. 20, 2023); (64) Lettieri v. Gunnip, No. 23-CV-1306 (W.D.N.Y. filed Dec. 20, 2023); (65) Lettieri v. Vilando, No. 23-CV-1660 (N.D. Ohio filed Aug. 25, 2023); (66) Lettieri v. Vilando, No. 23-CV-1686 (N.D. Ohio filed Aug. 29, 2023); (67) Lettieri v. Northeast Ohio Corr. Ctr., No. 23-CV-1690 (N.D. Ohio filed Aug. 29, 2023); (68) Lettieri v. Fed. Marshals, No. 23-CV-1872 (N.D. Ohio filed Sept. 26, 2023); (69) Lettieri v. New York State Troopers, No. 23-CV-2077 (N.D. Ohio filed Oct. 23, 2023); (70) Lettieri v. Fed. Marshals, No. 23-CV-2167 (N.D. Ohio filed Nov. 6, 2023); (71) Lettieri v. Fed. Marshals, No. 23-CV-2202 (N.D. Ohio filed Nov. 30, 2023); (72) Lettieri v. Northeast Ohio Corr. Ctr., No. 24-CV-0032 (N.D. Ohio filed Jan. 5, 2024); (73) Lettieri v. Performance Food Grp., No. 24-CV-0053 (E.D. Va. filed Jan. 18, 2024); (74) Lettieri v. Fed. Marshals, No. 23-CV-3317 (D.D.C. filed Nov. 2, 2023); (75) Lettieri v. The Broome Cnty. Humane Soc'y, No. 23-CV-7777 (E.D.N.Y. filed Oct. 10, 2023); (76) Lettieri v. Quinn, No. 23-CV-7830 (E.D.N.Y. filed Oct. 16, 2023); and (77) Lettieri v. T-Mobile, No. 24-CV-0028 (W.D. Wash. filed Jan. 4, 2024).
This case was transferred to the district court for the Northern District of Ohio, where it was assigned case number 23-CV-2172 (N.D. Ohio filed Nov. 7, 2023).
This case was transferred to the district court for the Western District of New York, where it was assigned case number 23-CV-1279 (W.D.N.Y. filed Dec. 8, 2023).
This case was transferred to the district court for the Northern District of New York, where it was assigned case number 23-CV-1547 (N.D.N.Y. filed Dec. 11, 2023).
This case was transferred to the district court for the Northern District of Ohio, where it was assigned case number 23-CV-1661 (N.D. Ohio filed Aug. 25, 2023).
This case was transferred to the district court for the Northern District of Ohio, where it was assigned case number 23-CV-2028 (N.D. Ohio filed Oct. 16, 2023).
This case was transferred to the district court for the Western District of New York, where it was assigned case number 23-CV-6682 (W.D.N.Y. filed Dec. 1, 2023).
This case was transferred to the district court for the Western District of New York, where it was assigned case number 23-CV-6704 (W.D.N.Y. filed Dec. 11, 2023).
Upon review of these actions, and consistent with the determinations reached by the Honorable Hector Gonzalez in Lettieri v. Broome Cnty. Humane Soc'y, 20-CV-7777, 23-CV-7830, 2023 WL 7017081, at *2 (E.D.N.Y. Oct. 25, 2023), denying recons., 2023 WL 8003478, (E.D.N.Y. Nov. 17, 2023), and the Honorable Lawrence J. Vilardo in Lettieri v. Broome Cnty. Humane Soc'y, 23-CV-1223, 2023 WL 9066861, at *2 (W.D.N.Y. Dec. 4, 2023), and Lettieri v. Auricchio, 23-CV-1121, 2023 WL 9066873, at *2 (W.D.N.Y. Dec. 4, 2023), this Court finds that, as of the date that Plaintiff commenced this action, he had acquired at least three “strikes.”As a result, Plaintiff's IFP Application must be denied unless it appears that the “imminent danger” exception to the “three strikes” rule set forth in Section 1915(g) is applicable to this action.
The actions in which Plaintiff acquired strikes are as follows: (1) Lettieri v. W. Dist. of N.Y., 23-CV-0770 (W.D.N.Y. Sept. 11, 2023), Dkt. No. 7; (2) Lettieri v. U.S. Dep't of Justice, 23-CV-0866 (W.D.N.Y. Sept. 19, 2023), Dkt. No. 3; and (3) Lettieri v. Vilardo, 23-CV-6498 (W.D.N.Y. Sept. 21, 2023), Dkt. No. 3.
B. Applicability of the “Imminent Danger” Exception
The “imminent danger” exception protects a prison inmate exposed to potential serious physical injury from the consequences of his earlier mistakes in filing frivolous litigation. Generally speaking, the allegations relevant to this inquiry “are those in which [plaintiff] describes physical injury, threats of violence, and deprivation of medical treatment.” Chavis v. Chappius, 618 F.3d 162, 165 (2d Cir. 2010). The Second Circuit has described the nature of the Court's inquiry regarding imminent danger as follows: “although the feared physical injury must be serious, we should not make an overly detailed inquiry into whether the allegations qualify for the exception, because § 1915(g) concerns only a threshold procedural question, while [s]eparate PLRA provisions are directed at screening out meritless suits early on.” Chavis, 618 F.3d at 169-70 (quoting Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007)) (internal quotation marks omitted).
“[F]or a prisoner to qualify for the imminent danger exception, the danger must be present when he files his complaint - in other words, a three-strikes litigant is not excepted from the filing fee if he alleges a danger that has dissipated by the time a complaint is filed.” Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009); see also Polanco v. Hopkins, 510 F.3d 152 (2d Cir. 2007); Akassy v. Hardy, 887 F.3d 91, 96 (2d Cir. 2018). However, “allegations of past violence can satisfy the imminent danger exception when, for example, the past harms are part of an ongoing pattern of acts.” Carter v. New York State, No. 20-CV-5955, 2020 WL 4700902, at *1 (S.D.N.Y. Aug. 12, 2020) (citing Chavis, 618 F.3d at 170 (holding that “[a]n allegation of a recent brutal beating, combined with three separate threatening incidents, some of which involved officers who purportedly participated in that beating, is clearly the sort of ongoing pattern of acts that satisfies the imminent danger exception.”)).
In addition, “§ 1915(g) allows a three-strikes litigant to proceed [IFP] only when there exists an adequate nexus between the claims he seeks to pursue and the imminent danger he alleges.” Pettus, 554 F.3d at 296. In deciding whether such a nexus exists, the Second Circuit has instructed the courts to consider “(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 29899.
In this case, the Complaint alleges that over three years before filing this action, Plaintiff's house was broken into and his dog was stolen. (Dkt. No. 1 at 14.) These allegations fail to plausibly suggest that Plaintiff was “under imminent danger of serious physical injury” when he signed his complaint on December 27, 2023. Therefore, Plaintiff is barred from proceeding IFP under Section 1915.
III. PLAINTIFF'S LETTER MOTION
Plaintiff also filed a letter motion seeking the return of his dog. (Dkt. No. 4.) Because Plaintiff's IFP application is denied and this action cannot proceed without the payment of the filing and administrative fees, I recommend that his letter motion be denied without prejudice to refiling.
ACCORDINGLY, it is
ORDERED that Plaintiff's IFP application (Dkt. No. 2) is DENIED; and it is further respectfully
RECOMMENDED that should Plaintiff wish to proceed with this action, he be required to pay the $405.00 filing and administrative fees within thirty (30) days from the filing of an Order by the assigned District Judge adopting this Order and Report-Recommendation. It is recommended that should Plaintiff fail to pay the full filing and administrative fees within thirty (30) days of the date of such an order, the case be dismissed without prejudice and without further order of the Court; and it is further respectfully
RECOMMENDED that Plaintiff's Letter Motion (Dkt. No. 4) be DENIED without prejudice to refiling; and it is further;
ORDERED that the Clerk of the Court shall file a copy of this order and reportrecommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).