Opinion
Civil Action No. 9:15-CV-0777 (GLS/DEP)
08-10-2016
ARRELLO BARNES, Plaintiff, v. ANTHONY ANNUCCI, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: ARRELLO BARNES, Pro Se 00-A-0597 Southport Correctional Facility P.O. Box 2000 Pine City, NY 14871 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: COLLEEN D. GALLIGAN, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: ARRELLO BARNES, Pro Se
00-A-0597
Southport Correctional Facility
P.O. Box 2000
Pine City, NY 14871 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224 OF COUNSEL: COLLEEN D. GALLIGAN, ESQ.
Assistant Attorney General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Arrello Barnes, a New York State prison inmate, has commenced this action against several individuals, pursuant to 42 U.S.C. § 1983, claiming that they have deprived him of his civil rights. Although the scope of plaintiff's claims has since been narrowed by the court, as originally pleaded, plaintiff's complaint generally alleged that twenty individuals employed by the New York State Department of Corrections and Community Supervision ("DOCCS") violated his rights under the First, Eighth, and Fourteenth Amendments through a series of actions related to disciplinary proceedings brought against plaintiff while he was incarcerated at four correctional facilities operated by the DOCCS. As a result of an earlier court decision, remaining for consideration are plaintiff's claims arising under the First and Fourteenth Amendments against fourteen defendants.
Currently pending before the court is a motion brought by the defendants seeking revocation of plaintiff's in forma pauperis ("IFP") status pursuant to 28 U.S.C. § 1915(g) and conditional dismissal of plaintiff's complaint. For the reasons set forth below, I recommend that the motion be denied.
I. BACKGROUND
Plaintiff commenced this action on or about June 25, 2015, by the filing of a complaint and accompanying application for leave to proceed IFP and motion for a preliminary injunction. Dkt. Nos. 1, 2, 4. Although plaintiff's original IFP application was denied by the court as incomplete, his subsequent motion for IFP status was granted. Dkt. Nos. 5, 6, 10.
On September 17, 2015, Senior District Judge Gary L. Sharpe issued a decision and order, pursuant to 28 U.S.C. §§ 1915(e), 1915A, sua sponte dismissing (1) all claims for money damages asserted against the defendants sued in their official capacities; (2) all claims asserted against defendants Miller, Eastman, Boyea, Janora, Stickney, and Waters; and (3) plaintiff's Eighth Amendment claims. See generally Dkt. No. 10. Judge Sharpe also determined, however, that plaintiff's First and Fourteenth Amendment claims asserted against defendants Annucci, Bell, Borowski, Coveny, Frazier, Hanson, Mahuta, Maxwell, McKeighan, Narkiewicz, Ollies, West, Whitford, and Venetozzi should survive the court's sua sponte review of the complaint and require a response from those defendants. Id. Plaintiff thereafter filed an amended complaint, Dkt. No. 18, reflecting the court's rulings contained in the initial order, and on October 26, 2015, Judge Sharpe accepted that amended complaint, which is now the operative pleading in the case. Dkt. No. 17.
On January 15, 2016, defendants filed a motion pursuant to section 28 U.S.C. § 1915(g) requesting that the court revoke plaintiff's IFP status and conditionally dismiss his complaint. Dkt. No. 30. Defendants contend that, as of October 16, 2014, plaintiff had accrued his third strike and thus is not entitled to IFP status, and that plaintiff has not alleged entitlement to the narrow imminent-danger exception set forth within the statute. See generally Dkt. No. 30-1. Accordingly, defendants request an order conditionally dismissing plaintiff's complaint unless plaintiff pays the requisite filing fee. Id. Plaintiff has since responded to defendants' motion, arguing that he has not incurred three strikes and, therefore, the motion should be denied. Dkt. No. 40. Defendants' motion, which is fully briefed, is now before 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).
II. DISCUSSION
When a civil action is commenced in a federal district court, the statutory filing fee, set at $400 at the time this suit was commenced, must ordinarily be paid. 28 U.S.C. §§ 1915(a). Although a court is authorized to permit a litigant to proceed IFP if it is determined that he is unable to pay the required filing fee, section 1915(g) provides that
The total cost for filing a civil action in this court is $400.00, consisting of the civil filing fee of $350.00, see 28 U.S.C. § 1914(a), and an administrative fee of $50.00. Although an inmate granted IFP status is not required to pay the $50.00 administrative fee, he is required to pay, over time, the full amount of the $350.00 filing fee regardless of the outcome of the action. See 28 U.S.C. § 1915(b)(3).
[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 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). The manifest intent of Congress in enacting this "three strikes" provision was 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) (citing Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir. 1997)); accord, Gill v. Pidlychak, No. 02-CV-1460, 2006 WL 3751340, at *2 (N.D.N.Y. Dec. 19, 2006) (Scullin, S.J., adopting report and recommendation by Treece, M.J.). The prophylactic effect envisioned under section 1915(g) is accomplished by requiring a prisoner who has incurred three strikes to apply the same cost-benefit analysis that other civil litigants engage in before filing suit - that is, the provision forces an inmate to assess whether the result sought to be achieved justifies paying the entire filing fee in advance, rather than in small increments from his inmate account. Tafari, 473 F.3d at 443.
All unreported decisions cited in this report have been appended for the convenience of the pro se plaintiff.
The Second Circuit has defined a frivolous claim as one that "lacks an arguable basis either in law or in fact." Tafari, 473 F.3d at 442 (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)). To determine whether a dismissal satisfies the failure-to-state-a-claim prong of section 1915, courts have looked to Rule 12(b)(6) of the Federal Rules of Civil Procedure for guidance. Tafari, 473 F.3d at 442. The question of whether the dismissal of a prior action constitutes a strike for purposes of section 1915(g) is a matter of statutory interpretation, and as such a question for the court. Id.
In this case, defendants contend that two mandates issued by the Second Circuit Court of Appeals dismissing appeals filed by the plaintiff as "lack[ing] an arguable basis in fact or law" constitute strikes under section 1915(g). Dkt. No. 30-2 at 3-4,35-36; see also Barnes v. Ross, No. 14-1614, Dkt. No. 45 (2d Cir. filed May 8, 2014); Barnes v. Ricks, No. 06-4237 (2d Cir. filed Sept. 12, 2006). I agree that those two dismissals represent strikes for purposes of section 1915(g). See Tafari, 473 F.3d at 442 ("An appeal is frivolous when it lacks an arguable basis either in law or in fact.").
The third purported strike to which defendants cite stems from Barnes v. Ross, No. 12-CV-1916 (S.D.N.Y. filed Mar. 14, 2012). In that case, District Judge Kevin Castel granted a summary judgment motion by the defendants and dismissed plaintiff's complaint in a twenty-eight page decision in which he analyzed the record evidence and concluded that plaintiff's claims should be dismissed on the merits. Ross, No. 12-CV-1916, Dkt. No. 107. In that decision, the court concluded that plaintiff only offered "conclusory assertions of misdiagnosis and discrimination that are unsupported by evidence, an affidavit that contradicts his own sworn testimony, and affidavits from other . . . inmates that contain vague or irrelevant assertions" in opposition to the defendants' motion. Id., Dkt. No. 107 at 1.
Absent an explicit finding of frivolousness, maliciousness, or failure to state a claim upon which relief may be granted, it is doubtful that the entry of summary judgment dismissing a complaint can qualify as a strike under section 1915(g). Indeed, courts in this circuit have routinely held that a dismissal at the summary judgment stage does not count as a strike for purposes of section 1915(g). See Hayes v. Herb, No. 11-CV-1271, 2014 WL 1292235, at *9 (N.D.N.Y. Mar. 31, 2014) (Sharpe, J., adopting report and recommendation by Peebles, M.J.) (holding that a case dismissed at summary judgment would not count as a strike against plaintiff for IFP purposes); Orraca v. Augustine, No. 10-CV-0840, 2013 WL 5411703, at *2 n.4 (W.D.N.Y. Sept. 26, 2013) (noting that cases dismissed on a motion for summary judgment do not count as strikes); Sidney v. Fischer, No. 09-CV-1326, 2011 WL 4478679, at *3 (N.D.N.Y. Aug. 8, 2011) (Baxter, M.J.) (noting that, in the Second Circuit, cases decided at summary judgment do not generally qualify as a strike); Lewis v. Healy, No. 08-CV-0148, 2008 WL 5157194, at *5 n.6 (N.D.N.Y. Dec. 8, 2008) (Kahn, J., adopting report and recommendation by Peebles, M.J.) (finding that one of the plaintiff's previous dismissals "likely does not qualify as a strike since [his] claims were dismissed on motion for summary judgment, rather than based upon a failure to state a claim upon which relief may be granted"); Martin v. Wallis, No. 07-CV-0175, 2008 WL 3471864, at *4 (D. Vt. Aug. 12, 2008) ("[C]ourts have also held that a case decided at summary judgment generally does not qualify for a strike under [section] 1915."); Ramsey v. Goord, No. 05-CV-0047, 2007 WL 1199573, at *2 (W.D.N.Y. Apr. 19, 2007) ("Moreover, a dismissal on summary judgment is generally not considered within the parameters of the three-strikes rule's requirement that the actions be dismissed as frivolous, malicious, or for failure to state a claim."); see also Richardson v. Ray, 402 F. App'x 775, 776 (4th Cir. 2010). In granting the defendants' motion for summary judgment in Barnes v. Ross, Judge Castel explicitly considered and relied on evidence outside of the pleadings. This fact undermines any potential argument that the dismissal of plaintiff's claims in that action could properly be construed as having been based upon the finding of a failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and thus falling within the scope of section 1915(g). Barnes v. Ross, No. 12-CV-1916, Dkt. No. 107.
Because defendants have demonstrated that plaintiff Barnes has incurred only two strikes for purposes of section 1915(g), and the court's independent review of plaintiff's litigation history supports that conclusion, defendants' motion should be denied, and plaintiff's IFP status should remain intact.
III. SUMMARY AND RECOMMENDATION
While the defendants have demonstrated that plaintiff Barnes has earned two strikes under the three-strikes provision of section 1915(g), the third determination offered by the defendants as a purported strike does not qualify because it was based upon the entry of summary judgment dismissing plaintiff's complaint, and not upon a finding that plaintiff's complaint was frivolous, malicious or failed to state a claim upon which relief could be granted. Accordingly, it is respectfully
RECOMMENDED that defendants' motion to revoke plaintiff's IFP status and conditionally dismiss the complaint in this matter, Dkt. No. 30, be DENIED.
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 86 (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: August 10, 2016
Syracuse, New York
/s/_________
David E. Peebles
U.S. Magistrate Judge