Opinion
24-CV-8739 (LTS)
11-18-2024
GEORGE BURNS, Plaintiff, v. POLICE OFFICER SPANO, Defendant.
ORDER OF DISMISSAL UNDER 28 U.S.C. § 1915(G)
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE:
Plaintiff, who is currently detained in the Westchester County Jail, brings this action pro se. He requests, in his complaint, to proceed without prepayment of fees, that is, in forma pauperis (“IFP”). (ECF 1 at 2-3.) Plaintiff is barred, however, from filing any new federal civil action IFP while he is a prisoner. See Burns v. Schell, No. 20-CV-5582, 2020 WL 6365556 (S.D.N.Y. Oct. 28, 2020), aff'd, No. 20-3883, 2023 WL 1113215 (2d Cir. Jan. 31, 2023) (summary order). The court's previous ruling in Burns, 2020 WL 6365556, relied on the “three-strikes” provision of the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g), which provides that:
[i]n 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.28 U.S.C. § 1915(g).
Plaintiff's complaint does not show that he is in imminent danger of serious physical injury.Instead, Plaintiff brings this action for damages against a police officer who allegedly unlawfully arrested him on May 14, 2023. (ECF 1.) Such allegations do not show that Plaintiff is in imminent danger of serious physical injury. Plaintiff is therefore barred from filing this action IFP.
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).
Plaintiff may commence a new action by paying the filing fee. 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).
CONCLUSION
The Court denies Plaintiff IFP status and dismisses this action without prejudice under the PLRA's “three-strikes” rule. See 28 U.S.C. § 1915(g). Plaintiff remains barred from filing any future federal civil action IFP while he is a prisoner, unless he is under imminent danger of serious physical injury. Id.
The court may bar any vexatious litigant (including a nonprisoner) from filing future civil actions in this court (even if the filing fees are 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).
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 Court directs the Clerk of Court to enter a judgment dismissing this action.
SO ORDERED.