Opinion
21-CV-6490 (LTS)
08-04-2021
JOE W. J. LOUIS, [1] Plaintiff, v. GOVERNOR STATE OF NEW YORK, MR. CUOMO, et al., Defendants.
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 Federal Medical Center in Devens, Massachusetts, brings this action pro se. He did not submit the filing fees or request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”). For the purposes of this order, the Court assumes Plaintiff seeks to proceed IFP.
Plaintiff is barred under the “three strikes” provision of the Prison Litigation Reform Act (“PLRA”) from filing any new action IFP while a prisoner. See Jean-Louis v. Onafer Nuclear Power Plant, No. 12-CV-1071 (JEM) (C.D. Cal. Feb. 22, 2012) (listing strikes). 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.
Here, Plaintiff's complaint does not show that Plaintiff is in imminent danger of serious physical injury. Instead, Plaintiff advocates that New York State officials implement certain safety measures on school buses, trucks, and other means of transportation, and that the Mayor of New York City conduct “mock-civil-defense emergency drills” and build underground hospitals and “nuclear fall-out shelters” at all elementary schools. (ECF 1, at 2.) 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).
CONCLUSION
The complaint is dismissed without prejudice under the PLRA's “three-strikes” rule. See 28 U.S.C. § 1915(g). Plaintiff remains barred from filing any future civil action IFP while in custody, unless he is under imminent threat of serious physical injury. Id. Plaintiff may commence a new civil action by pre-paying the entire $402.00 in filing fees.
If Plaintiff does file a new action and pays the filing fees, 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 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 Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket.
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).
SO ORDERED.