Opinion
21-CV-6577 (LTS)
08-04-2021
DENNIS ELLSWORTH WATKINS BEY, Plaintiff, v. JOHN/JANE DOE, Defendant.
ORDER OF DISMISSAL UNDER
LAURA TAYLOR SWAIN CHIEF UNITED STATES DISTRICT JUDGE
Plaintiff, who is currently a pretrial detainee at the North Infirmary Command on Rikers Island, brings this action pro se. Plaintiff has not prepaid the filing fees for this action. Plaintiff is barred, however, from filing any new action in forma pauperis (IFP) while he is a prisoner. See Watkins v. Wilkins, et al., No. 16-CV-9593 (CM) (S.D.N.Y. Jan. 11, 2017). That order relied on 28 U.S.C. § 1915(g), which provides that:
In no event shall a prisoner bring a civil action [IFP] 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.
Plaintiff's complaint does not show that he is in imminent danger of serious physical injury. Instead, Plaintiff seeks to remove his state court proceedings to this Court. Plaintiff is therefore barred from filing this action without prepaying the $402.00 in filing fees.
An imminent danger is one “existing at the time the complaint is filed.” Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002). A danger “that has dissipated by the time a complaint is filed” is not sufficient. Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009).
In his application, which is styled as a “Legal Notice of Removal, ” Plaintiff refers to the State of New York Criminal Court. Plaintiff does have pending criminal proceedings in the state court, People v. Watkins, CR-011736-20NY. But the caption of Plaintiff's removal petition is for Watkins Bey v. Bronx Supreme Court, Index 340251-20. It is therefore unclear what state court action he seeks to remove. Because this action is dismissed, the Court need not resolve the issue.
CONCLUSION
Plaintiff has not prepaid the filing fees for this action, and he is barred under 28 U.S.C. § 1915(g) from proceeding IFP. The complaint is therefore dismissed without prejudice under the PLRA's “three-strikes” rule. See 28 U.S.C. § 1915(g).
Plaintiff may commence a new action by prepaying the filing fees. If Plaintiff does so, that complaint will be reviewed under 28 U.S.C. § 1915A, which requires the Court to dismiss any civil rights complaint from a prisoner if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).
The Court may bar any vexatious litigant (including a nonprisoner) from filing future actions (even if the filing fee is paid) without first obtaining leave from the Court. See In re Martin-Trigona, 9 F.3d 226, 227-30 (2d Cir. 1993) (discussing sanctions courts may impose on vexatious litigants, including “leave of court” requirement).
Plaintiff remains barred from filing any future action IFP while he is a prisoner, unless he is under imminent threat of serious physical injury.
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 IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket.
SO ORDERED.