KENNETH M. KARAS, United States District Judge

OPINION & ORDER

Appearances:

Scott Morehouse
Fishkill, NY
Pro Se Plaintiff Adam Joseph Sansolo, Esq.
New York State Office of the Attorney General
New York, NY
Counsel for Defendants KENNETH M. KARAS, United States District Judge:

Pro se Plaintiff Scott Morehouse ("Plaintiff"), currently incarcerated at Downstate Correctional Facility, brings this Action, pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act ("ADA"), against Martin Vasques ("Vasques"), R. Griener ("Griener"), Eric Monroe ("Monroe"), and Robert Reid ("Reid") (collectively, "Defendants"), all Security Hospital Treatment Assistants at Mid-Hudson Forensic Psychiatric Center. (See Compl. (Dkt. No. 2).) Plaintiff claims that Defendants violated his rights under the Eighth and Fourteenth Amendments and the ADA when they assaulted him and failed to intervene in or treat him after these assaults. (Id. at 2, 5-6.)

Before the Court is Defendants' Motion to Revoke Plaintiff's in forma pauperis ("IFP") status and Dismiss the case (Not. of Mot. to Dismiss ("Mot. To Revoke IFP") (Dkt. No. 26).) For the following reasons, Defendants' Motion is denied.

I. Background

A. Factual Background

The following facts are drawn from Plaintiff's Complaint, and are taken as true for the purpose of resolving the instant Motion. On May 7, 2016, at Mid-Hudson Forensic Psychiatric Center, Plaintiff was assaulted by Vasques, Griener, and Monroe, while Reid watched and did nothing to stop the assault or properly report it. (Compl. 5.) Specifically, Vasques punched Plaintiff in the face several times, causing a nose bleed, an eye bruise, and severe pain and swelling. (Id.) He also spit in Plaintiff's face. (Id.) Griener punched Plaintiff in the body, causing pain and bruising, and Monroe also punched Plaintiff in the head, face, body and groin areas, also causing pain, bruising, and swelling to those areas. (Id.) During this altercation, Plaintiff was in "wrist-to-belt" restraints and strapped to a gurney, unable to defend himself or pose a danger to himself or others. (Id.) Reid watched the entire assault and did nothing to stop it, nor did he render medical aid for Plaintiff's injuries. (Id.) The entire incident took place on the elevator, out of view of the security cameras. (Id. at 6.)

On May 17, 2016, Vasques assaulted Plaintiff again by biting Plaintiff on his left hand, causing bleeding, swelling, and severe pain and scarring. (Id.) This injury was not treated by medical staff, who only looked at the injury and said "oh well." (Id.) Plaintiff reported to facility officials "that there was an ongoing problem with Vasques on several occasions," but officials did nothing to prevent this assault or respond to it. (Id.) Instead, officials allowed Vasques to be around Plaintiff after he reported that Vasques has threatened and harassed Plaintiff several times. (Id.)

B. Procedural History

Plaintiff filed the Complaint and a request to proceed IFP on June 27, 2017, while incarcerated at Great Meadow Correctional Facility. (Compl.; Dkt. No. 1.) The Court granted plaintiff IFP status on July 20, 2017. (Dkt. No. 6.) On August 3, 2017, the Court issued an Order of Service directing service on Defendants. (Dkt. No. 8.) On September 26, 2017, Defendants filed a pre-motion letter indicating the grounds on which they would move to revoke Plaintiff's IFP status and dismiss the Complaint. (Letter from Adam Sansolo, Esq. to Court (Sept. 26, 2017) (Dkt. No. 20).) The Court set a briefing schedule by memo endorsement on October 10, 2017. (Dkt. No. 23.) The following day, Plaintiff filed a response to the pre-motion letter. (Letter from Plaintiff to Court (Oct. 11, 2017) ("Pl.'s Obj. Letter") (Dkt. No. 25).)

Defendants filed the instant Motion and accompanying papers on November 8, 2017. (Mot. to Revoke IFP; Mem. of Law in Supp of Mot. to Dismiss ("Defs.' Mem.") (Dkt. No. 27)); Decl. of Adam J. Sansolo, Esq. in Supp. of Mot. to Dismiss ("Sansolo Decl.") (Dkt. No. 28).) On April 2, 2018, Defendants informed the Court that they had served Plaintiff with the Motion papers by overnight mail, but received the materials back in the mail marked as refused by recipient. (Letter from Adam Sansolo, Esq. to Court (Apr. 2, 2018) (Dkt. No. 31).) The Court memo endorsed the letter giving Plaintiff an additional 30 days to file an opposition because he was not mailed a copy of the briefing schedule. (Dkt. No. 32.) On April 20, 2018, Plaintiff filed an opposition to the Motion. (Pl.'s Opp'n to Mot. to Dismiss ("Pl.'s Mem.") (Dkt. No. 34).) Defendants did not file a reply.

II. Discussion

Because Plaintiff has IFP status, (Dkt. No. 6), he has been able to proceed and make submissions to the Court without the payment of fees. See 28 U.S.C. § 1915(a)(1). Defendants now move to revoke Plaintiff's IFP status on the ground that he has amassed at least three "strikes," requiring the revocation of the status under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e. (See Mot. To Revoke IFP.)

A. The Three Strikes Rule

The IFP statute was "designed to ensure that indigent litigants have meaningful access to the federal courts" and accordingly, waives the pre-payment of filing fees for qualifying prisoners of limited financial means. Neitzke v. Williams, 490 U.S. 319, 324 (1989). "However, concerned by the resulting rise of an 'outsize share of [prisoner] filings' and a 'flood of nonmeritorious claims,' Congress enacted the PLRA in 1996 in order to curb abuses of the IFP privilege and ensure 'fewer and better prisoner suits.'" Jones v. Moorjani, No. 13-CV-2247, 2013 WL 6569703, at *3 (S.D.N.Y. Dec. 13, 2013) (quoting Jones v. Bock, 549 U.S. 199, 203 (2007)), adopted by 2014 WL 351628 (S.D.N.Y. Jan. 31, 2014); see also Tafari v. Hues, 473 F.3d 440, 443 (2d Cir. 2007) (explaining that the PLRA was "designed to stem the tide of egregiously meritless lawsuits"). Toward that end, the PLRA contains a "three strikes" provision which states:

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.

There is an exception to the three strikes rule where a prisoner is "under imminent danger of serious physical injury," 28 U.S.C. § 1915(g), and such imminent danger "exist[ed] at the time the complaint [was] filed," Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002); see also Akassy v. Hardy, 887 F.3d 91, 96 (2d Cir. 2018) (same). Further, the Second Circuit has held that the complaint "must reveal a nexus between the imminent danger it alleges and the claims it asserts." Pettus v. Morgenthau, 554 F.3d 293, 298 (2d Cir. 2009). Thus, a court must "consider (1) whether the imminent danger of serious physical injury . . . allege[d] 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.

B. Plaintiff's IFP Status

Defendants argue that the following cases qualify as "strikes" sufficient to revoke Plaintiff's IFP status, because they dismissed Plaintiff's claims for failure to state a claim upon which relief may be granted: (1) Morehouse v. Alexander, No. 08-CV-0946, (N.D.N.Y. Sept. 30, 2008) (Dkt. No. 4) ("Alexander R&R"), adopted by, Morehouse v. Alexander, No. 08-CV-0946 (N.D.N.Y. Nov. 3, 2008) (Dkt. No. 7) ("Alexander Decision"); (2) Morehouse v. York, No. 14-CV-1444 (N.D.N.Y. Feb. 25, 2015) (Dkt. No. 6) ("York I"); and (3) Morehouse v. York, No. 15-CV-228 (N.D.N.Y. June 3, 2015) (Dkt. No. 9) ("York II"). (Sansolo Decl. Exs. A-D; Defs.' Mem. 2-7.) See 28 U.S.C. § 1915(g) (listing dismissals for "fail[ure] to state a claim upon which relief may be granted" as qualifying strikes); see also Welch v. Galie, 207 F.3d 130, 132 (2d Cir. 2000) (per curiam) (same).

Plaintiff does not contest the first alleged strike. (See Pl.'s Mem. 2 ("As for the Alexander case, I am not sure of its status other th[a]n closed.").) Nor could he. The district court in that case dismissed Plaintiff's complaint with prejudice, approving and adopting the R&R—which recommended dismissal for failure to state a claim upon which relief may be granted and for lack of subject matter jurisdiction—in its entirety. (Alexander Decision 2; R&R (1-2, 21 (citing 28 U.S.C. §§ 1915(a), 1915(e)(2)(B)(ii); Fed. R. Civ. P. 12(h)(3)).)

However, Plaintiff does argue that the two York cases do not qualify as strikes, because "they were not dismissed;" rather, he withdrew the cases instead of filing an amended complaint. (Pl.'s Mem. 2; see also Pl.'s Obj. Letter 1.) In both York I and York II, Plaintiff's claims were dismissed for failure to state a claim upon which relief may be granted—some with prejudice, and others without prejudice. Specifically, in York I, the court dismissed Plaintiff's claim that the defendants did not facilitate or respond to his grievances with prejudice, but dismissed the rest of Plaintiff's claims—under the First Amendment, RLUIPA, and the Fourteenth Amendment—without prejudice. (York I at 12-13; see also id. at 5-9, 10-12.) The court gave Plaintiff 30 days to file an amended complaint, ordering the clerk of court to enter judgment dismissing the action pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b) for failure to state a claim upon which relief may be granted in the event Plaintiff did not file one. (Id. at 13.) However, instead of filing an amended complaint, Plaintiff filed a letter stating "I am withdrawing the [§] 1983 civil rights complaint. . . . At this time it appears that the defendants are willing to back off and we are at a comp[ro]mise." York I, No. 14-CV-1444 (Dkt. No. 7). The court construed this letter as seeking a voluntary dismissal pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure, and dismissed the case without prejudice. Id. (Dkt. No. 8). However, the court noted that "Plaintiff has filed six actions in [the Northern] [D]istrict since November 2014," and this dismissal "shall have no impact upon plaintiff's other pending actions." Id. at 2 n.1. Plaintiff did not appeal.

In York II, the court dismissed Plaintiff's claims against one defendant without prejudice for failure to plausibly allege personal involvement, and ordered Plaintiff to file a "Peralta Waiver" within 30 days or face dismissal of his due process claims without prejudice as barred by Heck v. Humphrey, 512 U.S. 477 (1994). (York II at 13-14; see also id. at 10-11 & n.13.) Plaintiff filed a letter requesting "clarification" of the court's decision, or appointment of counsel, because he did not understand the "Peralta waiver" order. York II, No. 15-CV-228 (Dkt. No. 6). The Court advised Plaintiff that it "cannot provide [P]laintiff with legal advice" and granted him an extension to comply with the court's decision. Id. (Dkt. No. 7). Plaintiff filed another letter requesting clarification or appointment of counsel because he said he did not understand "what a Peralta waiver is." Id. (Dkt. No. 8.) The court denied this request and again advised Plaintiff it could not provide legal advice. Id. (Dkt. No. 10). On July 15, 2015, judgment was entered dismissing the case without prejudice. Id. (Dkt. No. 11). On August 14, 2015, Plaintiff filed a motion to temporarily withdraw all of his cases pending in the Northern District until he found an attorney, and arguing that York I and York II do not count as "strikes" because the former was withdrawn and the latter was dismissed because he did not know what a Peralta Waiver was. Id. (Dkt. No. 13). The court denied the motion as moot because judgment was already entered. Id. (Dkt. No. 14). Plaintiff filed another letter again alleging that he had "no strikes" because all cases were dismissed without prejudice or Plaintiff was permitted to amend. Id. (Dkt. No. 15). The court issued a text order that "Plaintiff is reminded that the Court has issued a Decision and Order . . . in this action and Judgment was entered." Id. (Dkt. No. 16.)

The Second Circuit has not decided whether a dismissal of an action without prejudice for failure to state a claim qualifies as a strike under the three strikes rule. See Campbell v. Nassau Cty. Sheriff Dep't of Corr., No. 14-CV-6132, 2017 WL 5513630, at *2-4 (E.D.N.Y. Nov. 16, 2017) ("Although the Second Circuit has not decided this issue, most other circuits to confront it have held that since § 1915(g) does not distinguish between dismissals with prejudice and those without, a strike results from any dismissal made on one of the three enumerated grounds."). However, the Court need not decide this issue of first impression because, even assuming that such dismissals qualify as strikes, that is not what occurred in York I.

The three strikes provision specifically applies to "an action . . . that was dismissed" on one of the enumerated grounds. § 1915(g) (emphasis added). In other words, a strike is derived from a district court's order of dismissal of the entire case, if not the resulting judgment itself. See Coleman, 135 S. Ct. at 1764 (explaining that a strike takes effect upon "a trial court's judgment"); Jones v. Smith, 720 F.3d 142, 146 (2d Cir. 2013) (explaining that "the most natural reading of the three strikes provision is that the term 'action or appeal' . . . is simply an abbreviated reference to the term 'civil action'"); Harris v. City of New York, 607 F.3d 18, 23-24 (2d Cir. 2010) (holding that, when assessing whether a prior case constitutes a strike, "district court[s] may rely on . . . docket sheets if they indicate with sufficient clarity that the prior suits were dismissed on" an enumerated ground, and citing orders of dismissal); Deleon v. Doe, 361 F.3d 93, 95 (2d Cir. 2004) (explaining that "orders of judgment [that] dispose of suits . . . may ultimately . . . qualify as strikes," and therefore "should clearly set forth the reasons for dismissal, including whether the dismissal is because the claim . . . fails to state a claim" and "whether the dismissal is with prejudice or without" (internal quotation marks omitted)); McNair v. Kelly, No. 13-CV-728, 2013 WL 4574247, at *2 (S.D.N.Y. Aug. 26, 2013) (explaining that partial dismissal for failure to state a claim does not count as a strike because "§ 1915(g) speaks of the dismissal of actions and appeals, not claims," and "[i]ndeed, it would make no sense to say—where one claim within an action is dismissed for failing to state a claim and another succeeds on the merits—that the action had been dismissed for failing to state a claim" (internal quotation marks omitted)); Tafari v. Hues, 539 F. Supp. 2d 694, 702 (S.D.N.Y. 2008) (holding that, "strikes should be imposed only when entire actions are dismissed for one of the stated reasons within [§] 1915(g)" and that "plaintiffs do not incur strikes for partial dismissals"); see also Washington v. Los Angeles Cty. Sheriff's Dep't, 833 F.3d 1048, 1057 (9th Cir. 2016) ("We assess a PLRA strike only when the case as a whole is dismissed for a qualifying reason under the Act." (internal quotation marks omitted)); Tolbert v. Stevenson, 635 F.3d 646, 651 (4th Cir. 2011) (holding that "§ 1915(g) requires that a prisoner's entire action or appeal be dismissed on enumerated grounds in order to count as a strike").

In York II, judgment was entered dismissing the case without prejudice—before Plaintiff filed his motion to withdraw the case. York II (Dkt. Nos. 11, 13). By contrast, in York I, the court dismissed most of Plaintiff's claims without prejudice and gave him 30 days to amend, (York I at 12-13); instead, Plaintiff filed a Rule 41(a)(1) motion for voluntary dismissal, and the court then entered an order voluntarily dismissing the case without prejudice, York I (Dkt. No. 8). Therefore, even assuming York II's dismissal without prejudice for failure to state a claim counts as a strike, York I's voluntary dismissal without prejudice—not for failure to state a claim or for any other enumerated basis in § 1915(g)—does not qualify as a strike. Cf. Campbell, 2017 WL 5513630, at *3 (noting that both of the prior dismissals resulted in judgment "ultimately entered dismissing the action on the basis of . . . failure to state a claim" and thus they counted as strikes "under the plain language of § 1915(g)"). This echoes the rulings of other courts, which have held that Rule 41(a)(1) dismissals cannot count as strikes. See, e.g., Abreu v. Kooi, No. 14-CV-1529, 2016 WL 4702274, at *5 (N.D.N.Y. Aug. 4, 2016) ("While a dismissal pursuant to § 1915 for failure to state a claim may preclude a subsequent IFP action, the action [here] was not dismissed pursuant to § 1915, but rather was voluntarily withdrawn by [the] [p]laintiff pursuant to Fed. R. Civ. P. 41(a)." (citation omitted)), adopted by 2016 WL 4690404 (N.D.N.Y. Sept. 7, 2016); see also Andrews v. Persley, 669 F. App'x 529, 530 (11th Cir. 2016) (holding that "voluntary dismissal of an action pursuant to Rule 41(a)" does not count as a strike); Howard v. Harris, No. 13-CV-11004, 2014 WL 4102496, at *2 (S.D. W. Va. Aug. 18, 2014) (granting motion for voluntary dismissal but noting that any "future claims that are improperly brought may be dismissed with prejudice if [the] [p]laintiff seeks to voluntarily dismiss his action only after he receives an unfavorable recommendation from a magistrate judge"). Defendants cite no cases to the contrary. Indeed, many courts have declined to grant motions for voluntary dismissal pursuant to Rule 41(a) out of concern that a pro se prisoner is attempting to evade the three strikes rule. As one district court explained:

If a prisoner is allowed to dismiss his complaint without prejudice after he has been asked to amend the complaint because he failed to state a claim or after a magistrate judge has entered findings and conclusions which recommend summary dismissal of his complaint under §§ 1915, 1915A, or 1997e, the prisoner will not accumulate a "strike"; he will not have to weigh the merits of his complaint before filing because he can wait to let the court evaluate it for him; and he will be able to continue filing frivolous, malicious, and meritless complaints that unduly burden scarce judicial resources.

Although the Court finds Plaintiff's conduct—repeatedly filing lawsuits and voluntarily withdrawing them once a court has already dismissed them without prejudice—disturbing and a potential subversion of the purpose of the three strikes rule, the solution lies with the district judges faced with Plaintiff's Rule 41(a) motions, or with Congress. In this case, Plaintiff's Rule 41(a) motion was already granted in York I, and the action was dismissed voluntarily, without prejudice, on a ground not enumerated in § 1915(g). York I (Dkt. No. 8). Therefore, because Plaintiff has not accumulated three strikes, Defendants' Motion To Revoke his IFP status is denied.

III. Conclusion

For the reasons explained above, Defendants' Motion To Revoke Plaintiff's IFP status is denied. Defendants are directed to file an Answer within 30 days of the date of this Opinion. The Court will then hold a conference on October 17, 2018 at 11:00 am.

The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No. 26), and to mail a copy of this Opinion to Plaintiff. SO ORDERED Dated: September 4, 2018

White Plains, New York

/s/_________

KENNETH M. KARAS

UNITED STATES DISTRICT JUDGE