Opinion
Civil Action No. 9:10-CV-1082 (DNH/DEP)
07-05-2012
JOHNATHAN JOHNSON, Plaintiff, v. ADAMS, Doctor, Upstate Correctional Facility, et al., Defendants.
JOHNATHAN JOHNSON, Pro Se OF COUNSEL: FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN Office of Attorney General ADELE M. TAYLOR-SCOTT, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: JOHNATHAN JOHNSON, Pro Se
OF COUNSEL:
FOR DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
Office of Attorney General
ADELE M. TAYLOR-SCOTT, ESQ.
Assistant Attorney General
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Johnathan Johnson, a prolific inmate litigant who has been granted leave to proceed in forma pauperis ("IFP"), has commenced this action pursuant to 42 U.S.C. § 1983 against the former Deputy Commissioner and Director of Health Services for the New York State Department of Corrections and Community Supervision ("DOCCS"), the Superintendent of the correctional facility in which he is incarcerated, and a physician, a physician's assistant, and two registered nurses who work at that prison, alleging deprivation of his civil rights. In his complaint, Johnson maintains that he has been denied various medications including an inhaler for his alleged chronic obstructive pulmonary disease ("COPD"), Neutrogena soap, and A&D Ointment, and asserts that the denial represents deliberate indifference to his serious medical needs, in violation of the Eighth Amendment, and was in retaliation for his having filed grievances, in violation of his rights under the First Amendment. Plaintiff's complaint seeks recovery of compensatory and punitive damages in the amount of $1 million each, as well as injunctive and declaratory relief.
Now that discovery is closed, the defendants have moved for summary judgment seeking dismissal of plaintiff's claims on a variety of grounds, including qualified immunity. Also included within their motion is an application by the defendants for revocation of plaintiff's IFP status based upon the "three strikes" provision of 28 U.S.C. § 1915(g). Because it is abundantly clear that plaintiff has accumulated three strikes, within the meaning of that provision, and based upon the lack of any palpable showing of circumstances sufficient to meet the imminent danger exception to the three strikes rule, I recommend that plaintiff's IFP status be revoked and that the remaining portions of defendants' motion be held in abeyance pending plaintiff's payment of the required $350 filing fee. I. BACKGROUND
In light of the procedural posture of the case the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in favor of the plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Plaintiff is a New York State prison inmate confined under the supervision of the DOCCS. See generally Complaint (Dkt. No. 1). At all times relevant to his complaint, plaintiff was designated to the Upstate Correctional Facility, located in Malone, New York, and remains confined at that facility. Id.
Upstate is a maximum security prison comprised exclusively of special housing unit ("SHU") cells in which inmates are confined, generally though not always for disciplinary reasons, for twenty-three hours each day. See Samuels v. Selsky, No. 01 CIV. 8235, 2002 WL 31040370, at *4 n.11 (S.D.N.Y. Sept. 12, 2002). Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
In his complaint plaintiff complains of the failure of prison medical personnel at Upstate to provide him with medical care and treatment. Plaintiff alleges, for example, that on April 8, 2010, Physician's Assistant ("PA") Patrick Johnson discontinued his skin allergy medication, A&D Ointment, soap, and stomach medications based upon his alleged failure to attend a scheduled call out on that date. Complaint (Dkt. No. 1) Statement of Facts ¶ 1. On June 10, 2010, according to Johnson, Dr. Adams, a physician assigned to work at Upstate, discontinued all of his prescriptions, including his Provincial inhaler for his COPD as well as his Neutrogena soap, a fact which he attributes to Nurses George Waterson and Heath Baker having told Dr. Adams that according to Johnson those medications were not working. Id. at ¶¶ 2-6. Plaintiff further alleges that on or about May 8, 2010 PA Johnson discontinued plaintiff's skin ointment, and that from March 2010 to the date of filing of his complaint Nurses Baker, Waterson, and others continuously denied him medical care and treatment for his medical conditions. Id. at ¶¶ 8-11. II. PROCEDURAL HISTORY
It appears from plaintiff's medical records that the discontinuation on April 8, 2010 was a result of his refusal to come out of his cell. See Plaintiff's Medical Records (Dkt. No. 43) Entry Dated 4/8/10. Those records also reflect that plaintiff was issued Neutrogena Soap, A&D Ointment, and medication for his stomach two days later on April 10, 2010. Id. at Entry Dated 4/10/10.
In a note authored by a registered nurse on June 12, 2010, it is reported that plaintiff's prescription medications were discontinued by a doctor on June 10, 2010 due to plaintiff's refusal to be seen by the doctor. See Plaintiff's Medical Records (Dkt. No. 43) Entry Dated 6/12/10. That notation goes on to indicate that the doctor would consider the plaintiff's need for medication once he was seen for a medical evaluation. Id.
Plaintiff's medical records contain no evidence of cessation of plaintiff's skin ointment on or about May 8, 2010, and in fact indicate that he was provided Vaseline for his skin on that date. See Plaintiff's Medical Records (Dkt. No. 43) Entry Dated 5/8/10.
Plaintiff commenced this action on September 9, 2010, and thereafter was granted leave to proceed IFP. Dkt. Nos. 1, 4. Named as defendants in plaintiff's complaint are Dr. Lester Wright, the former Deputy Commissioner and Director of Health Services for the DOCCS; David Rock, the Superintendent at Upstate; Dr. Adams, a medical doctor engaged to perform medical services at Upstate; Nancy Smith, the Nurse Administrator at the facility; Patrick Johnson, a PA at Upstate; and Registered Nurses George Waterson and Heath Baker, all of whom are employed by the DOCCS and assigned to work at Upstate. Id.
In my order dated December 23, 2010, granting plaintiff's IFP application, I addressed a potential three strikes concern and, while finding that Johnson had indeed accumulated far more than three strikes by the time his complaint was filed, concluded that his allegations met the threshold requirement under the Second Circuit's decision in Chavis v. Chappius, 618 F.3d 162 (2d Cir. 2010) for alleging imminent danger. Order dated December 23, 2010 (Dkt. No. 4) at pp. 8-9. In that initial order, however, I went on to note that plaintiff's IFP status would be revoked if, as the case progressed, the court concluded that he did not face imminent danger of serious physical at the time he commenced this action. Id.
On December 30, 2011, following the completion of discovery, defendants moved for the entry of summary judgment dismissing plaintiff's complaint. Dkt. No. 42. In their motion, defendants request revocation of plaintiff's IFP status based upon 28 U.S.C. § 1915(g). In addition, defendants argue that 1) plaintiff's Eighth Amendment cause of action lacks merit; 2) defendants are not exposed to liability damages for actions taken in their official capacities; 3) plaintiff cannot demonstrate the irreparable harm necessary to obtain permanent injunctive relief; 4) defendants Wright, Rock and Smith were not personally involved in the constitutional violations alleged; 5) plaintiff has failed to establish the necessary elements of a retaliation claim; and 6) in any event, the defendants are entitled to qualified immunity. Id. Responses in opposition to defendants' motion were received from the plaintiff on January 9, 2012, March 15, 2012, and March 16, 2012. Dkt. Nos. 45, 51, 52. Defendants' motion, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
Three separate applications by the plaintiff seeking the issuance of a preliminary injunction were denied by District Judge David N. Hurd, by decision issued on February 23, 2012. Dkt. No. 47. None of those three motions involved medical treatment rendered to Johnson at Upstate. Plaintiff has appealed the denial of injunctive relief to the Second Circuit. See Dkt. No. 48. The pendency of that appeal, however, does not stand as a barrier to deciding the pending summary judgment motion or revoking plaintiff's IFP status. New York State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1350 (1989).
III. DISCUSSION
A. Three Strikes Provision
In their motion defendants invoke 28 U.S.C. § 1915(g), arguing that under that section plaintiff's litigation history, which includes for greater than three merit-based dismissals, warrants revocation of his IFP status.
Section 1915(g), which was enacted as part of sweeping inmate litigation reform brought about by adoption of the Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), though engendering far less litigation than some of its PLRA counterparts including, notably, the exhaustion of remedies requirement of 42 U.S.C. § 1997e(a), provides that
[i]n 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 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). The manifest intent of Congress in enacting this "three strikes" provision was to curb prison inmate abuses and to deter the filing of multiple, frivolous civil rights suits by prison inmates. Tafari v. Hues, 473 F.3d 440, 443-44 (2d Cir. 2007); Gill v. Pidlychak, No. 9:02-CV-1460, 2006 WL 3751340, at *2 (N.D.N.Y. Dec. 19, 2006) (Scullin, S.J. & Treece, M.J.). The prophylactic effect envisioned under section 1915(g) is accomplished by requiring a prisoner who has had three previous strikes to engage in the same cost-benefit analysis that other civil litigants must make before deciding whether to commence suit, accompanied by the filing of the full fee - that is, to assess whether the result to be achieved justifies the filing fee expenditure. Tafari, 473 F.3d at 444; Ibrahim v. District of Columbia, 463 F.3d 3, 6 (D.C. Cir. 2006). As the Second Circuit has noted, in the context of PLRA amendments requiring inmates to authorize prison officials to make deductions from inmate accounts to be applied as partial payments of appellate filing fees for prisoners granted in forma pauperis status,
[p]rior to the enactment of the in forma pauperis amendments, inmates suffered no economic disincentive to filing law suits. Indeed, the very nature of incarceration - prisoners have substantial free time on their hands, their basic living expenses are paid by the state and they are provided free of charge the essential resources needed to file actions and appeals, such as paper, pens, envelopes and legal materials - has fostered a "'nothing to lose and everything to gain'" environment which allows inmatesindiscriminately to file suit at taxpayers' expense. Nicholas v. Tucker, 114 F.3d 17, 20 (2d Cir. 1997), cert. denied sub nom., Nicholas v. Miller, 523 U.S. 1126, 118 S. Ct. 1812 (1998) (internal citations omitted); see also Gill, 2006 WL 3751340, at *2.
The question of whether the dismissal of a prior action qualifies as a strike, for purposes of section 1915(g), is a matter of statutory interpretation, and as such a question for the court. Tafari, 473 F.3d at 442-43. In determining whether a dismissal satisfies the failure to state a claim prong of the statute, implicated in this case, courts have drawn upon the provisions of Rule 12(b)(6) of the Federal Rules of Civil Procedure for guidance, particularly in light of the similarity in phrasing utilized in the two provisions. Tafari, 473 F.3d at 442 (citing Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005)).
The Second Circuit has expressed its view that the time for determination of "strikes" is only when the section 1915(g) issue is ripe for adjudication, and that because of the potentially significant consequences flowing from such a finding, a court should not, when dismissing an inmate complaint, contemporaneously signal whether the dismissal should count as a "strike" for the purposes of that section. DeLeon v. Doe, 361 F.3d 93, 95 (2d Cir. 2004); see also Snider v. Melindez, 199 F.3d 108, 115 (2d Cir. 1999) ("We . . . doubt whether the entry of a strike is properly considered at the time an action is dismissed").
B. Application of Section 1915(g)
It appears to be firmly established that prior to commencing this action plaintiff had accumulated three or more strikes falling within section 1915(g), and Johnson seemingly does not dispute this fact. When asked to list previous lawsuits relating to his imprisonment in the form utilized to file his complaint, plaintiff noted simply "three strikes". See Complaint (Dkt. No. 1) § 5. The fact that Johnson has accumulated at least three strikes is confirmed in a report and recommendation authored by Magistrate Judge George H. Lowe, and adopted by Senior District Judge Lawrence E. Kahn, in 2008. See Johnson v. Connolly, No. 9:07-CV-0158 (LEK/GHL), 2008 WL 724167 (N.D.N.Y. Mar. 17, 2008). In his report in that action, Judge Lowe chronicled plaintiff's extensive prior litigation history, which at that point included the filing of forty-six prisoner civil rights actions and, after making the required analysis, concluded that plaintiff had acquired three strikes at a minimum, for purposes of section 1915(g), by the time the complaint in that action was filed. Id. at * 8; see also Johnson v. Fischer, No. 11-CV-386 (GLS/DRH), 2011 WL 6945706, at *4 (N.D.N.Y. Dec. 22, 2011) (finding that plaintiff had accumulated three strikes but could potentially satisfy the imminent danger exception based upon his allegation that he was the target of enemy gang members and prison officials did nothing to protect him, resulting in his being assaulted). This is consistent with an earlier determination issued by another court in 2005 finding that at that time, plaintiff had acquired at least five strikes. See Johnson v. Goord, No. 05-CV-6084 slip op. at p. 2 (W.D.N.Y., filed Feb. 28, 2005) (Telesca, J.), and a subsequent finding from that court later in 2005 that at that point plaintiff had acquired at least eight strikes. See Johnson v. Worley, No. 05-CV-6602, slip op. at p. 2 (W.D.N.Y., filed Nov. 18, 2005) (Siragusa, J.).
According to publically available records, with the subsequent filing of this action and others, it appears plaintiff has filed in excess of fifty-three civil rights actions, while incarcerated, not including federal habeas corpus actions, federal court appeals, state court actions, or state court appeals.
I therefore conclude that plaintiff had accumulated well in excess of three strikes, within the meaning of section 1915(g), by the time this action was filed.
C. Imminent Danger Exception
As a safety valve, obviously intended to protect a prison inmate exposed to potential danger from the harsh consequences of his or her earlier folly, section 1915(g) provides that a prisoner who is in "imminent danger of serious physical injury" may avoid application of the three strikes rule of section 1915(g). See 28 U.S.C. § 1915(g); see also Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir. 2002). In accordance with this exception, an inmate who has had three prior "strikes" but nonetheless wishes to commence a new action in forma pauperis must show that he or she was under imminent danger at the time of filing; the exception does not provide a basis to avoid application of the three strikes on the basis of past harm. Malik, 293 F.3d at 562-63; see also Chavis v. Chappius, 618 F.3d 162, 169 (2d Cir. 2010). An inmate who claims the benefit of this exception must also show that the danger faced rises to the level of exposure to a "serious physical injury." 28 U.S.C. § 1915(g). The imminent danger claimed by the inmate, moreover, must be real, and not merely speculative or hypothetical. Johnson v. Barney, No. 04 Civ. 10204, 2005 WL 2173950, at *1-2 (S.D.N.Y. Sept. 6, 2005) (finding that inmate's allegation of danger at facility he was not housed at, but may pass through at infrequent occasions in the future, does not establish imminent danger).
For a three-strikes litigant to qualify for the imminent danger exception, his or her 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). When determining whether the requisite relationship is present a court must examine "(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 299 (emphasis in original).
The term "serious physical injury," as utilized in section 1915(g), is nowhere concretely defined, although it has been construed by various courts as including a "disease that could result in serious harm or even death[.]" Ibrahim, 463 F.3d at 7. In deciding whether to invoke the exception, a court must examine the available pleadings, construed in a light most favorable to the plaintiff, to determine whether the plaintiff has alleged a serious physical injury. McAlphin v. Toney, 281 F.3d 709, 710 (8th Cir. 2002). Conditions which have been held to rise to a sufficient threshold level include denial of treatment for infected gums, resulting in damages of infection, McAlphin, 281 F.3d at 710; denial of adequate treatment for Hepatitis C, a "chronic and potentially fatal disease," Ibrahim, 463 F.3d at 6-7; and patterns of harassment from corrections officers, heart palpitations, chest pains and labored breathing, Ciarpaglini v. Saini, 352 F.3d 328, 330-31 (7th Cir. 2003) (finding upon reaching the merits, however, that plaintiff's complaint did not state an Eighth Amendment claim).
Plaintiff's eligibility for IFP status turns on whether he can establish that he faced imminent danger of serious physical injury on September 9, 2010, when this action was filed. Any potential claim of imminent danger in this case is belied by plaintiff's complaint as well as other portions of the record now before the court. A review of plaintiff's medical records, for example, reveals that the principal cause of the denial of medical care and medications of which he complains has been his refusal to be seen by a physician and to comply with the protocols associated with dispensing those medications, requiring him to recite his name and DIN number before receiving medications while in SHU confinement. See Smith Decl. ¶¶ 6-13; see also Plaintiff's Medical Records (Dkt. No. 43); Scott Decl. (Dkt. No. 42-2) Exh. E., Transcript of Plaintiff's Deposition of May 6, 2011 at pp. 35-36, 44-45. This same conclusion was reached by another court in connection with a challenge brought by the plaintiff pursuant to New York Civil Practice Law & Rules ("CPLR") Article 78, with Acting Supreme Court Justice Michael Melkonian observing the following regarding Johnson's conduct:
It is noteworthy . . . that petitioner fails to mention that the medicine has been held back in part because of petitioner's refusal to be examined by a facility doctor. Petitioner's refusal to comply with minor formalities that he believes are unnecessary demonstrates that petitioners [sic] medical conditions and his need for the medications are not as important to petitioner as his desire to assert himself and establish control over how the respondents do their work.Scott Decl. (Dkt. No. 42-2) Exh. D, slip op. at p. 3. Indeed, during his deposition Johnson essentially acknowledged that he himself was the cause of any deprivation of medication, and that were he truly at risk because of that deprivation he held the key to recurring treatment and medication, needing only comply with the required protocols, testifying as follows:
Q. Mr. Johnson, who is the person who's being allegedly deprived of anything as a result of your behavior?Scott Decl. (Dkt. No. 42-2) Exh. E, at p. 62.
A. Johnson.
Q. Thank you.
A. Ask me do I care.
Q. Okay. It's no sweat off your back then?
A. As long as I can put a lawsuit in against it, no, it's no sweat off my back.. . .
A careful review of plaintiff's medical records covering the period leading up to and including when this action was filed, medical personnel at Upstate attempted, on literally a daily basis, to provide medication and treatment to the plaintiff in his SHU cell. Plaintiff's medical records are replete with notations showing that it was as a result of his actions, including his refusal to comply with prison policies, that he was not provided with medications and treatment. On November 8, 2010, for example, a medical provider (whose signature is illegible) noted the following on plaintiff's ambulatory health record:
Upon arrival to cell, asked inmate his name + DIN. Inmate refused to provide and responded "you know my name + DIN you Homo." Conversation terminated and inmate stated "you'll be named in the lawsuit" and continued to shout profanities and insults while Nurse was on gallery. Not provided.See Plaintiff's Medical Records. (Dkt. No. 43) Entry Dated 11/8/10. On many other dates plaintiff hurled obscenities or issue threats toward medical staff members at the facility. See, e.g., Plaintiff's Medical Records (Dkt. No. 43) Entry Dated 5/10/10 ("verbally abusive"); 5/16/10 ("verbally inappropriate"); 5/22/10 ("I/M became verbally abusive"); 5/29/10 ("hollering obscenities"); 6/22/10 ("swearing, verbal harassment to staff"); 6/26/10 ("verbally inappropriate"); 6/28/10 ("verbally abusive"); 7/3/10 ("verbally inappropriate"); 7/4/10 ("verbally harassing staff", "swearing"); 7/6/10 ("verbally abusive"); 7/10/10 ("verbally abusive"); 7/11/10 ("verbally inappropriate"); 7/17/12 ("swearing at nurse"); 7/18/12 ("swearing at nurse"); 7/21/10 ("verbally abusive toward staff"); 7/22/12 ("inappropriate"); 7/23/12 ("swearing @ staff, threatening, [with] physical harm"); 7/24/12 ("vulgar obscene language"); 7/28/10 ("threatening to sexual violate [nurse]"); 7/27/12 ("swearing and threatening nurse"); 7/31/10 (stating to nurse "I want to stick my finger up your ass you little slut"); 8/1/10 ("inappropriate"); 8/2/10 ("inappropriate verbal harassment"); 8/3/10 ("verbal harassment towards staff"); 8/4/12 ("verbally abusive swearing at staff"); 8/6/12 ("inappropriate behavior"); 8/9/12 ("inappropriate @ cell door, swearing at staff threatening violence"); 8/12/10 ("swearing at nurse"); 8/18/10 (stating to nurse "suck my dick"); 8/26/10 (stating to nurse that he would come out of cell "if you suck my dick"); 9/7/10 ("verbally abusive"); 9/8/10 ("swearing verbally inappropriate"); 9/16/10 ("standing @ cell door yelling"); 9/25/10 (stating to nurse "get the f_ck away from my window"); 9/26/10 (stating to nurse "I hate you mother fu_ker"); 9/29/10 ("swearing @ staff"); 10/10/10 ("swearing @ staff, inappropriate behavior"); (10/13/10 "verbally inappropriate"); 10/21/10 (referring to nurse as an "alcoholic"); 10/26/10 ("verbally inappropriate"); 10/30/10 ("swearing at nurse"); 11/1/10 ("swearing at staff"); 11/2/10 ("swearing at staff"); 11/3/10 ("inappropriate behavior"); 11/7/10 ("vulgar and inappropriate language toward nurse"); 11/14/10 ("aggressive behavior, scream extreme vulgarity-unable to redirect behavior"); 11/21/10 ("swearing at nurse"); 11/22/12 ("swearing at staff"); 11/24/10 ("inappropriate behavior"); 11/26/10 ("dangerous behavior"); 11/27/10 ("inmate began yelling swearing and threatening verbally"); 12/1/10 ("noncompliant, swearing at staff"); 12/10/12 ("swearing @ nurse"); 12/10/12 ("threatening staff [with] violence"); 12/11/12 ("swearing"); 12/24/11 ("swearing @ staff inappropriate language"); 12/26/12 ("swearing & name-calling"); 12/28/12 ("swearing at staff"); 12/29/12 (referring to nurse as a "dick sucker"); 1/6/11 ("verbally abusive toward staff"); 1/17/11 (when asked for name and DIN responding "I'll see you in court mother fucker"); 1/20/11 ("becoming verbally abusive screaming obscenities and racial/sexual slurs"); 1/21/11 ("yelling racial and sexual slurs at RN"); 1/25/12 ("yelling sexual and racial slurs @ an RN"); 1/25/11 ("vulgar/inappropriate"); 1/30/12 ("vulgar remarks verbalized").
At the heart of plaintiff's complaint is his claim that prison officials discontinued his prescription medications. Plaintiff's health records show, however, that plaintiff's prescription drugs were discontinued based upon his refusal to be seen by the prison physician. See Plaintiff's Medical Records (Dkt. No. 43) Entry Dated 6/12/10. On September 18, 2010 - nine days after commencement of this action - plaintiff complained of dry skin and gas, and was provided with sinus medication as well as A&D ointment. See Plaintiff's Medical Records. See id. at Entry Dated 9/18/10. On the following day, plaintiff was provided with Vaseline for his dry skin and athletes foot cream for a fungal condition. See id. at Entry Dated 9/19/10.
In sum, a careful review of the record now before the court, even when viewed in a light most favorable to the plaintiff fails to disclose any basis for concluding at the time this action was filed, he was exposed to imminent danger of serious physical injury. Plaintiff has therefore failed to demonstrate his entitlement to this narrow exception to the PLRA's three-strike statutory provision.
IV. SUMMARY AND RECOMMENDATION
Plaintiff, a persistent litigant in this and other courts, brings this action to challenge defendants' failure to provide him with desired medication and treatment while in SHU confinement at Upstate. A review of the plaintiff's litigation history reveals that without dispute, he has incurred three or more strikes falling within 28 U.S.C. § 1915(g). The record further fails to disclose a basis to conclude that at the time this action was filed he was in imminent danger of serious physical injury, even under the arguably relaxed standard announced by the Second Circuit in Chavis. A review of plaintiff's litigation history and his conduct during the course of this action makes it clear that to the plaintiff, litigation is a form of recreation of the type which the PLRA's three strikes provision was intended to curb. Plaintiff's repeated filing of actions in this and other courts not only unduly harasses prison officials, but burdens already over-taxed court resources and those of the Office of the Attorney General, which is called upon to defend against such claims.
Based upon the foregoing, it is hereby respectfully
RECOMMENDED that plaintiff's in forma pauperis status be REVOKED, and that he be required to pay the required filing fee within thirty days of the issuance of an order adopting this report and recommendation, and that his complaint be dismissed in the event of his failure to pay the statutory $350 filing fee; and it is further hereby
RECOMMENDED, that the substantive portions of defendants' summary judgment motion (Dkt. No. 42) be held in abeyance, and that in the event the plaintiff does pay the required filing fee, that the matter be returned to me for consideration of the remaining portions of defendants' motion.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. Dated: July 5, 2012
Syracuse, NY
_________________
David E. Peebles
U.S. Magistrate Judge