Opinion
5:22-cv-01024 (MAD/TWD)
10-20-2022
JOHNNY WILLIAM BOYDE, Plaintiff, v. DETECTIVE ANDREW BARNES, Defendant.
JOHNNY WILLIAM BOYDE Plaintiff, pro se.
JOHNNY WILLIAM BOYDE Plaintiff, pro se.
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, United States Magistrate Judge.
The Clerk has sent to the Court for review a pro se complaint filed by Johnny William Boyde (“Plaintiff') pursuant to 42 U.S.C. § 1983 (“Section 1983”). (Dkt. Nos. 1, 6.) Plaintiff, who is currently confined at the Onondaga County Justice Center, has not paid the filing fee required for this action and seeks to proceed in forma pauperis (“IFP”). (Dkt. No. 4.)
Plaintiff's original complaint was received on September 30, 2022. (Dkt. No. 1.) By Order entered September 30, 2022, this case was administratively closed based on Plaintiff's failure to comply with the filing fee requirement. (Dkt. No. 2.) Thereafter, Plaintiff filed his IFP application and inmate notification form, along with a copy of his original complaint and “amended complaint”, and the Clerk was directed to reopen this action and restore it to the Court's active docket. (Dkt. Nos. 3, 4, 5, 6. 7.) At this early juncture, and in deference to Plaintiff's pro se status, rather than treat the “amended complaint” as a superseding pleading, the Court will consider Plaintiff's “amended complaint” as a supplement to his original complaint and consider them as a single pleading for purposes of initial review. (Dkt. Nos. 1, 6.)
For the reasons set forth below, Plaintiff's IFP application is denied, and the undersigned recommends sua sponte dismissing this action without further leave to amend pursuant to 28 U.S.C. § 1915(g) and 28 U.S.C. §§ 1915(e) and 1915A.
II. IFP APPLICATION
Where a plaintiff seeks leave to proceed IFP, the Court must determine whether the plaintiff has demonstrated sufficient economic need to proceed without prepaying, in full, the Court's filing fee of four hundred two dollars ($402). The Court must also determine whether the “three strikes” provision of Section 1915(g) bars the plaintiff from proceeding IFP and without prepayment of the filing fee. More specifically, Section 1915(g) provides as follows:
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, No. 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent, incarcerated individual need not prepay the filing fee . . . at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Id. (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).
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). The question of whether a prior dismissal is a “strike” is a matter of statutory interpretation and, as such, is a question for the Court to determine as a matter of law. Id. at 442-43.
In 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). If the plaintiff is indigent and not barred by Section 1915(g), the Court must also consider whether the causes of action stated in the complaint are, inter alia, frivolous or malicious, or if they fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b).
As used in this Section, the term “prisoner” means “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915A(c).
In this case, Plaintiff has demonstrated economic need and has filed the inmate authorization form required in this District. (See Dkt. Nos. 4, 5.) Therefore, the Court must now determine whether the “three strikes” provision bars Plaintiff from proceeding IFP.
A. Determination of “Strikes”
The Court has reviewed Plaintiff's litigation history on the Federal Judiciary's Public Access to Court Electronic Records (“PACER”) Service. See PACER Case Locator, https://pcl.uscourts.gov/pcl/pages/search/findParty.jsf (last visited Oct. 18, 2022). Plaintiff is a frequent litigator and, prior to this action, has commenced twelve civil actions in this District.
See Boyde v. County of Onondaga, 5:16-cv-00555 (N.D.N.Y. May 12, 2016); Boyde v. Brockway, 9:18-cv-01231 (N.D.N.Y. Oct. 18, 2018); Boyde v. Green, 9:18-cv-01033 (N.D.N.Y. Jan. 4, 2019); Boyd v. County of Onondaga, 5:19-cv-00150 (N.D.N.Y. Feb. 6, 2019); Boyde v. City of Syracuse, 5:21-cv-00270 (N.D.N.Y. Mar. 9, 2021); Boyde v. Uzunoff, 9:21-cv-00741 (N.D.N.Y. June 29, 2021); Boyde v. Quigley, 9:21-cv-00742 (N.D.N.Y. June 29, 2021); Boyde v. Onondaga Justice Center, 9:21-cv-00748 (N.D.N.Y. June 30, 2121); Boyde v. Onondaga County Justice Center, 9:21-cv-00796 (N.D.N.Y. July 13, 2021); Boyde v. Onondaga County Justice Center, 9:21-cv-00797 (N.D.N.Y. July 13, 2021); Boyde v. McCarty, 9:21-cv-00837 (N.D.N.Y. July 23, 2021); Boyde v. Fahey, 5:21-cv-01277 (N.D.N.Y. Dec. 1, 2021).
Having reviewed Plaintiff's litigation history, the Court finds that as of the date Plaintiff commenced this action, he had already accumulated at least “three strikes.” See Boyde v. Brockway, 9:18-cv-01231, Dkt. No. 10 (N.D.N.Y. Jan. 11, 2019) (dismissing complaint for failure to state a claim upon which relief may be granted); Boyde v. Green, 9:18-cv-01033, Dkt No. 7 (N.D.N.Y. Oct. 17, 2018) (same); Boyde v. Uzunoff, 9:21-cv-00741, Dkt. No. 26 (N.D.N.Y. Sept. 23, 2021) (same); Boyde v. Quigley, 9:21-cv-00742, Dkt. No. 9 (N.D.N.Y. Sept. 23, 2021) (same); Boyde v. Onondaga Justice Center, 9:21-cv-00748, Dkt. No. 9 (N.D.N.Y. Sept. 23, 2021) (same); Boyde v. McCarty, 9:21-cv-00837, Dkt. No. 4 (N.D.N.Y. Sept. 23, 2021) (same); Boyde v. Fahey, 5:21-cv-01277, Dkt. No. 16 (N.D.N.Y. May 26, 2022) (same). Thus, unless it appears that the “imminent danger” exception to the “three-strikes” rule is applicable to this action, Plaintiff may not proceed IFP.
B. The “Imminent Danger” Exception
Congress enacted the “imminent danger” exception contained in the final phrase of Section 1915(g) as a “safety valve” to prevent impending harms to prisoners otherwise barred from proceeding IFP. Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002). Generally speaking, the allegations relevant to this inquiry “are those in which [plaintiff] describes physical injury, threats of violence, and deprivation of medical treatment.” Chavis v. Chappius, 618 F.3d 162, 165 (2d Cir. 2010).
In Chavis, the Second Circuit described the nature of the Court's inquiry regarding imminent danger as follows: “although the feared physical injury must be serious, we should not make an overly detailed inquiry into whether the allegations qualify for the exception, because § 1915(g) concerns only a threshold procedural question, while [s]eparate PLRA provisions are directed at screening out meritless suits early on.” Id. at 169-70 (quoting Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007)) (internal quotation marks omitted).
“[F]or a prisoner to qualify for the imminent danger exception, the danger must be present when he files his complaint - in other words, a three-strikes litigant is not excepted from the filing fee if he alleges a danger that has dissipated by the time a complaint is filed.” Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009); see also Polanco v. Hopkins, 510 F.3d 152 (2d Cir. 2007) (imminent danger claims must be evaluated at the time the complaint is filed, rather than at the time of the events alleged). In addition, there must be an “adequate nexus between the claims he seeks to pursue and the imminent danger he alleges.” Pettus, 554 F.3d at 296. In deciding whether such a nexus exists, the Second Circuit has instructed the courts to consider “(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 298-99. Both requirements must be met in order for the three-strikes litigant to proceed IFP. Id. Generally speaking, the allegations relevant to the imminent danger inquiry “are those in which [plaintiff] describes physical injury, threats of violence, and deprivation of medical treatment.” Chavis, 618 F.3d at 165.
Upon careful review of the complaint and “amended complaint”, the Court finds Plaintiff has failed to plead facts sufficient to place him within the imminent danger exception provided by Section 1915(g), which is available “[w]hen a threat or prison condition is real and proximate, and when the potential consequence is ‘serious physical injury.'” See Flemming v. Kemp, No. 9:09-CV-1185 (TJM/DRH), 2010 WL 3724031, at *2 (N.D.N.Y. Aug. 19, 2010) (citing Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (The imminent danger exception is available “for genuine emergencies,” where “time is pressing” and “a threat . . . is real and proximate.”)).
In this action, Plaintiff alleges wrongdoings related to a grand jury proceeding in Onondaga County Court in July 2016. (Dkt. No. 1 at 2-5; Dkt. No. 6 at 4.) Specifically, Plaintiff claims that on July 28, 2016, Detective Andrew Barnes (“Defendant”) “testified before the grand jury falsely, maliciously, and without probable cause” “for the purpose of procuring an indictment against Plaintiff . . . for three counts of the crimes of failure to register/verity change of address as a sex offender.” (Dkt. No. 1 at 2-3.) “Solely based on, and in reliance on the false and perjured testimony of the Defendant”, the grand jury indicted Plaintiff for the three counts. Id. at 3. “The indictment was designated as Indictment Number 2016-0698-1 and was returned in open court on [August 2, 2016], and was duly docketed as Index Number 16-0831.” Id. at 45. Thereafter, on December 1, 2016, “Plaintiff's first count of the three was dismissed thus terminating the prosecution in favored to Plaintiff.” Id. at 5. Plaintiff claims “the problem” with Defendant's testimony during the grand jury proceeding was that “Plaintiff's designation as a ‘sex offender' within the meaning of Correction Law § 168a[1], was vacated by operation of law upon reversal of Plaintiff's judgment on [November 14, 2014], and the Plaintiff did not become a ‘sex offender' (again) until the Plaintiff was sentenced on July 21, 2015.” (Dkt. No. 6 at 4.) Plaintiff seeks significant monetary damages. (Dkt. No. 1 at 5-6; Dkt. No. 6 at 5.)
Page references to documents identified by docket number are to the page numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
Plaintiff attaches, inter alia, a copy of Decision/Order dated December 1, 2016, by the Hon. Walter W. Hafner, Jr., Acting Onondaga County Court Judge, dismissing count 1 of the indictment as an exhibit to the complaint. (Dkt. No. 1 at 11-18.)
Even liberally construed, Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996), Plaintiff's allegations do not plausibly suggest that he was at risk of an “imminent danger of serious physical injury” when he filed this action in September 2022. See Pettus, 554 F.3d at 296 (stating that risk of serious physical harm must exist at the time the complaint is filed). Accordingly, Plaintiff's IFP application is denied. (Dkt. No. 4.)
Moreover, because Plaintiff's claim(s) do not involve a physical injury, it is impossible for Plaintiff to demonstrate that any of the events described in the amended complaint placed him at risk of an “imminent danger of serious physical injury” when he filed this action. Under such circumstances, the Court need not grant Plaintiff leave to amend his pleading further before requiring him to pay the required filing fee or face dismissal. See Chavis, 618 F.3d at 170 (leave need not be granted where even a liberal reading of the complaint fails to give “any indication that a valid claim might be stated”); Carolina v. Rubino, 644 Fed. App'x 68, 73, (2d Cir. 2016) (summary order) (concluding that the district court “did not abuse its discretion by dismissing Carolina's complaint without granting leave to amend Carolina's complaint” because the complaint “did not present the possibility of [plaintiff] stating a valid imminent-danger claim”).
Ordinarily, the finding that Plaintiff does not qualify for the “imminent danger” exception to the “three-strikes” rule would end the Court's discussion, and Plaintiff, in light of his pro se status, would likely be afforded an opportunity to prepay the full filing of four hundred and two dollars ($402.00) to continue with this action. However, as is discussed more completely below, because the Court has an overarching obligation to determine that a claim is not legally frivolous before permitting a pro se plaintiff's complaint to proceed, in this instance, the Court recommends dismissal without leave to pay the filing fee. See, e.g., Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee).
III. SUFFICIENCY OF THE COMPLAINT
A. Legal Standards
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Similarly, this Court must review any “complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity” and must “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A. The Court must also dismiss a complaint, or portion thereof, when the Court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3).
As used in this Section, the term “prisoner” means “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915A(c).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding that a pro se litigant's complaint is to be held “to less stringent standards than formal pleadings drafted by lawyers”); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
“An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). “A claim is based on an indisputably meritless legal theory when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.” Id.
To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This short and plain statement of the claim must be “plausible on its face.” BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Id. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555; see also Fed.R.Civ.P. 8(a)(2).
In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
B. Application
Plaintiff brings this action pursuant to Section 1983, which “provides a cause of action for ‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Wilder v. Virginia Hosp. Ass 'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). “To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must allege (1) that some person has deprived him of a federal right, and (2) that the person who has deprived him of that right acted under color of state law.” Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005). Having carefully reviewed Plaintiff's amended complaint, the Court recommends that it be sua sponte dismissed in its entirety pursuant to 28 U.S.C. §§ 1915(e) and 1915A.
Here, as set forth above, Plaintiff claims Defendant testified before a grand jury “falsely, maliciously, and without probable cause” that Plaintiff had “committed three counts of the crime of failure to register/verify change of address as a sex offender[.]” (Dkt. No. 6 at 4.) Witnesses are, however, absolutely immune from liability under Section 1983 for damages for their testimony, even if their testimony was false. See Rehberg v. Paulk, 566 U.S. 356, 366-69 (2012); Briscoe v. LaHue, 460 U.S. 325 (1983).
In Rehberg, the Supreme Court held that “a grand jury witness has absolute immunity from any § 1983 claim based on the witness' testimony.” 566 U.S. at 369. This immunity attaches even if the testimony is false and given by a police officer. See Adamou v. Doyle, 707 Fed.Appx. 745, 746 (2d Cir. 2018) (noting that under Rehberg, “a grand jury witness, including a law enforcement officer, ‘has absolute immunity from any § 1983 claim based on the witness' testimony,' even if that testimony is perjurious” (quoting Rehberg, 566 U.S. at 369)).
Accordingly, Defendant is entitled to absolute immunity. See, e.g., Burdick v. Swarts, No. 5:12-CV-1711 (NAM/DEP), 2019 WL 1409938, at *7 (N.D.N.Y. Mar. 28, 2019); Jenkins v. Cty. of Washington, 126 F.Supp.3d 255 (N.D.N.Y. 2015) (police officers entitled to absolute immunity from liability for their alleged conduct of giving false testimony before grand jury and during criminal trial in § 1983 action against officers brought by arrestee who was prosecuted for and acquitted of drug offenses). Therefore, the Court recommends dismissing this action because it is frivolous, fails to state a claim on which relief may be granted, and seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e) and 1915A.
Additionally, “[w]hen a [plaintiff] seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Heck v. Humphrey, 512 U.S. 477, 487 (1994). It is unclear whether Plaintiff's current confinement at the Onondaga County Justice Center is related to this action. To the extent Plaintiff alleges he was wrongfully convicted as a result of Defendant's testimony at the grand jury proceeding, Plaintiff's pursuit of money damages may also be barred by the favorable termination rule in Heck v. Humphrey.
Generally, when the court dismisses a pro se complaint sua sponte, the court should afford the plaintiff the opportunity to amend at least once; however, leave to re-plead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).
The defects in Plaintiff's Section 1983 claims against Defendant are substantive and would not be cured if afforded an opportunity to amend. Therefore, the Court recommends dismissal of this action without leave to replead.
Lastly, as noted, Plaintiff is a frequent pro se litigator in this District and has a history of filing IFP complaints dismissed on initial review for failure to state a claim upon which relief may be granted. Plaintiff is cautioned that the filing of vexatious, harassing, or duplicative lawsuits may result in the imposition of sanctions, including limitations on his ability to file without prior permission of the Court. See Ajamian v. Nimeh, No. 14-CV-0320 (GTS), 2014 WL 6078425, at *3 (N.D.N.Y. Nov. 13, 2014) (“[A] federal district court may impose reasonable filing restrictions on a pro se litigant in that particular court, pursuant to 28 U.S.C. § 1651(a) and its inherent authority to control and manage its own docket so as to prevent abuse in its proceedings.”); see also In re Sassower, 20 F.3d 42, 44 (2d Cir. 1994) (where a pro se plaintiff has demonstrated a “clear pattern of abusing the litigation process by filing vexatious and frivolous complaints,” a “leave to file” requirement may be instituted by the court as an appropriate sanction); Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005) (“If a litigant has a history of filing vexatious, harassing or duplicative lawsuits, courts may impose sanctions, including restrictions on future access to the judicial system.”).
WHEREFORE, for the reasons stated herein, it is hereby
ORDERED that Plaintiff's IFP application (Dkt. No. 4) is DENIED; and it is further
RECOMMENDED that this action be DISMISSED IN ITS ENTIRETY WITHOUT LEAVE TO REPLEAD pursuant to 28 U.S.C. §§ 1915(e) and 1915A; and it is hereby
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam) on Plaintiff.
Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).
FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec 'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).
IT IS SO ORDERED.