Opinion
No. 08-cv-412 (GLS-GHL).
September 5, 2008
FOR THE PLAINTIFF: WILLIAM ESCALERA, Pro Se, 04-A-1380, Auburn Correctional Facility, Auburn, New York.
DECISION AND ORDER
The above-captioned matter comes to this court following a Supplemental Report-Recommendation ("R R") by Magistrate Judge George H. Lowe, filed July 24, 2008. (Dkt. No. 12.) The R R recommended that pro se plaintiff William Escalera's Amended Complaint (Dkt. No. 11) be dismissed due to Escalera's: (1) failure to pay the filing fee of $350; and (2) failure to allege facts plausibly suggesting that he is entitled to benefit from the exception to the "Three Strikes" Rule of 28 U.S.C. § 1915(g) for cases in which prisoners are in imminent danger of serious physical injury. Pending is Escalera's response to the R R, which the court has construed, liberally, as an objection (the "Objection") to the R R. (Dkt. No. 14.)
The Clerk is directed to append the R R to this Decision and Order, and familiarity therewith is presumed.
As the court has frequently observed, before entering final judgment, the court routinely reviews all report-recommendations in cases it has referred to a Magistrate Judge. See Anderson v. Banks, No. 06-cv-0625, 2008 WL 3285917, at *1 (N.D.N.Y. Aug. 7, 2008). If a party has objected to specific elements of the Magistrate Judge's findings and recommendations, the court reviews those findings and recommendations de novo. See id. In those cases where no party has filed an objection, or only a vague or general objection has been filed, the court reviews the findings and recommendations for clear error. See id.
Here, Escalera's Objection is at best general and vague, and at worst, incomprehensible. He complains that he has been subjected to a "catch 22" in that he "had wished to withdraw his petition due to not being able to pay." (Objection; Dkt. No. 14.) Additionally, he accuses the court and Judge Lowe of greed. ( See id.) It is apparently Escalera's view that the court is holding up his case in an effort to fleece him of $350. In the alternative, he may be under the mistaken impression that he is required to pay the $350 in spite of his desire to withdraw the case. Neither impression is accurate. Nor, for that matter, are Escalera's arguments relevant to or responsive to the recommendations made by Judge Lowe. Accordingly, upon review of the R R for clear error, the court adopts it in its entirety, and Escalera's Amended Complaint is dismissed.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the Supplemental Report-Recommendation of Magistrate Judge George H. Lowe filed July 24, 2008 is adopted in its entirety and the Amended Complaint is dismissed; and it is further
ORDERED that the Clerk enter judgment and close the case.
IT IS SO ORDERED.
ORDER and REPORT-RECOMMENDATION
This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me by the Honorable Gary L. Sharpe, United States District Judge, to hear and determine all pretrial matters (of a non-dispositive nature) and issue report-recommendations on all dispositive matters before the Court, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Currently before the Court is Plaintiff's motion to proceed in forma pauperis. (Dkt. No. 2.) For the reasons discussed below, I deny Plaintiff's motion pursuant to 28 U.S.C. § 1915(g), and I recommend that the Court sua sponte dismiss his Complaint (pursuant to 28 U.S.C. §§ 1915[e][2][B][ii], 1915A) if he has not, within thirty (30) days of the date of this Order and Report-Recommendation, (1) paid the Court's filing fee of three hundred fifty dollars ($350), and (2) filed an Amended Complaint that complies with Fed.R.Civ.P. 8(a)(2), 10(b), and 12(b)(6).I. SUMMARY OF PLAINTIFF'S COMPLAINT
Generally, in his Complaint, William Escalera ("Plaintiff") alleges that eight employees of Auburn Correctional Facility ("Auburn C.F."), and an unidentified number of members of the "Time Allowance Committee" at Auburn C.F. (collectively "Defendants"), violated his rights under the First, Eighth and Fourteenth Amendment in the following five ways:(1) They were deliberately indifferent to his serious medical needs in various unspecified ways between October 5, 2004 (when he was admitted to Auburn C.F.) and April 12, 2008 (the time he dated his Complaint in this action), both before and after approximately April of 2006, when he underwent surgery to remove a bunion on the big toe of his right foot;
(2) They were deliberately indifferent to his serious medical needs when, following his making of "sick call" requests on April 4, 2008, and April 7, 2008 (presumably regarding his "seizures disorder" and "history of eczema"), he was seen by a nurse who denied his request for "medications, [a] medical shower, and appoints. to see [a] doctor";
(3) They wrongfully convicted him of disciplinary charges on February 25, 2008;
(4) They wrongfully terminated him from the Auburn C.F. Alcohol Substance Abuse Treatment ("ASAT") Program, because of the thirty (30) day sentence of keeplock confinement that was imposed on him following his disciplinary conviction on February 25, 2008, and they wrongfully denied his request to be reinstated in that Program; and
(5) They wrongfully denied him due process of law, an impartial hearing officer, and equal protection of the law during a hearing conducted on April 9, 2008, regarding a grievance that Plaintiff had filed against a correctional officer on February 10, 2008, alleging assault. ( See generally Dkt. No. 1 [Plf.'s Compl.].)
II. DISCUSSION
A. Three Strikes Rule
Under the so-called "Three Strikes Rule" set forth in the federal statute governing in forma pauperis proceedings,
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).
Here, I find that, before Plaintiff brought this action on April 12, 2008, he had acquired at least five (5) "strikes" for purposes of 28 U.S.C. § 1915(e)(2): _____
Strike 1: Escalera v. Seligman, 05-CV-1391, Order of Dismissal (S.D.N.Y. filed Feb. 2, 2005) (Mukasey, J.) ( sua sponte dismissing Plaintiff's prisoner civil rights action pursuant to 28 U.S.C. § 1915[e][2], and certifying that any appeal therefrom would not be taken in good faith), appeal dismissed, No. 05-1603, Order of Dismissal (2d Cir. filed May 11, 2005); Strike 2: Escalera v. New York City Housing Dept., 05-CV-1446, Order of Dismissal (S.D.N.Y. filed Feb. 4, 2005) ( sua sponte dismissing Plaintiff's prisoner civil rights action for failure to state claim pursuant to 28 U.S.C. § 1915[e][2][B][ii], and certifying that any appeal therefrom would not be taken in good faith) (Mukasey, J.), appeal dismissed, No. 05-1597, Order of Dismissal (2d Cir. filed June 2, 2005);
A strong argument exists that the Order of Dismissal by the Second Circuit, Escalera v. Seligman, No. 05-1603, constituted an additional "strike" for purposes of 28 U.S.C. § 1915(e)(2)(B)(i), although the Order was, on its face, based on Plaintiff's failure to pay the required filing fee. This is because the Second Circuit required the payment of a filing fee only because it had previously found that Plaintiff's appeal was frivolous in that the appeal did not involve any legal points arguable on its merits (and thus no reason existed to reverse the district court's decision to deny Plaintiff in forma pauperis status on appeal, i.e., after the district court had found that any such appeal would not be "taken in good faith"). See Escalera v. Seligman, No. 05-1603, Order (2d Cir. filed July 8, 2005) (denying Plaintiff's motion to proceed in forma pauperis on appeal because his "claims lack merit").
Strike 3: Escalera v. N.Y.P.D., 05-CV-1435, Order of Dismissal (S.D.N.Y. filed Feb. 4, 2005) ( sua sponte dismissing Plaintiff's prisoner civil rights action for failure to state claim and for seeking monetary relief against defendant who is immune from such relief, pursuant to 28 U.S.C. § 1915[e][2][B][ii], [iii]) (Mukasey, J.), appeal dismissed, No. 05-1602, Order of Dismissal (2d Cir. filed Nov. 4, 2005);
Strike 4: Escalera v. Selsky, 06-CV-0837, Order of Dismissal (N.D.N.Y. filed March 8, 2007) (Kahn, J.) (dismissing Plaintiff's prisoner civil rights action for failure to comply with Order filed Nov. 6, 2006, sua sponte requiring Plaintiff, pursuant to 28 U.S.C. § 1915[e][2][B], to file amended complaint due to the failure of his original complaint to state a claim upon which relief might be granted pursuant to Fed.R.Civ.P. 8[a][2], 10[b], and 12[b][6]); and
Strike 5: Escalera v. Charwand, 04-CV-0983, Order of Dismissal (N.D.N.Y. filed March 12, 2008) (Scullin, J.), adopting Report-Recommendation (N.D.N.Y. filed Feb. 19, 2008) (Peebles, M.J.) (recommending Plaintiff's prisoner civil rights action be dismissed for failure to state claim pursuant to Fed.R.Civ.P. 12[b][6] and, in the alternative, failure to adduce sufficient evidence to create a triable issue of fact pursuant to Fed.R.Civ.P. 56).
Although the Report-Recommendation in Escalera v. Charwand, 04-CV-0983 (N.D.N.Y.) addressed defendants' motion for summary judgment, the Report-Recommendation rather expressly ruled that each of Plaintiff's three claims (i.e., his free-speech claim, his due process claim, and his equal protection claim) was deficient first in that it failed to allege sufficient facts to state a claim (i.e., pursuant to Fed.R.Civ.P. 12[b][6]) and second in that it failed to have sufficient record support (i.e., pursuant to Fed.R.Civ.P. 56). See Escalera v. Charwand, 04-CV-0983, Report-Recommendation, at 17-18, 20, 22, 24 (N.D.N.Y. filed Feb. 19, 2008) (Peebles, M.J.). Clearly, a motion for summary judgment may be denied on the ground that the plaintiff failed to state a claim upon which relief might be granted. See Schwartz v. Compagnise General Transatlantique, 405 F.2d 270, 273-74 (2d Cir. 1968) ("Where appropriate, a trial judge may dismiss for failure to state a cause of action upon motion for summary judgment.") [citations omitted], accord, Katz v. Molic, 128 F.R.D. 35, 37-38 (S.D.N.Y. 1989) ("This Court finds that . . . a conversion [of a Rule 56 summary judgment motion to a Rule 12(b)(6) motion to dismiss the complaint] is proper with or without notice to the parties.").
Moreover, I find that Plaintiff has not shown that he is "under imminent danger of serious physical injury," sufficient to create an exception to the "Three Strikes Rule." See 28 U.S.C. § 1915(g) ("In no event shall a prisoner bring a civil action . . . if the prisoner has, on 3 or more prior occasions, . . . brought an action or appeal . . . that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim . . . unless the prisoner is under imminent danger of serious physical injury.") [emphasis added].
Because 28 U.S.C. § 1915(g) creates an exception for prisoners who are under imminent danger of serious physical injury when they "bring a civil action," the imminent-danger exception applies only when such danger exists at the time the action is brought, i.e., at the time the complaint is filed. See Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir. 2002), accord, Polanco v. Hopkins, No. 07-1739, 2007 WL 4258724, at *2-3 (2d Cir. Dec. 6, 2007) (declining to overturn the Second Circuit's time-of-filing interpretation set forth in Malik v. McGinnis). Moreover, when determining whether a prisoner has qualified for the "imminent danger" exception, courts look at the non-conclusory allegations in the plaintiff's complaint.
Johnson v. Connolly, 07-CV-0158, 2008 WL 724167, at *9 n. 18 (N.D.N.Y. March 17, 2008) (on de novo review, adopting Report-Recommendation of Lowe, M.J., recommending revocation of plaintiff's in forma pauperis status due to "Three Strikes Rule" in part because plaintiff had not, in his complaint, asserted non-conclusory allegations that he was in imminent danger of serious physical injury) [citations omitted]; Welch v. Fisher, 07-CV-0929, 2007 WL 3231992, at *1-2 (N.D.N.Y. Oct. 30, 2007) (McAvoy, J.) (concluding that plaintiff had failed to allege imminent danger of serious physical injury) [citations omitted]; see also Abdrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) ("[A]ll [circuits] maintain a singular focus on the facts alleged in the complaint in deciding whether a prisoner faced the requisite harm.") [collecting cases]; Ibrahim v. Dist. of Columbia, 463 F.3d 3, 6 (D.C. Cir. 2006) ("In determining whether he qualifies [for the 'imminent danger' exception], we look to the complaint. . . ."); Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004) ("[T]he issue [under § 1915(g)] is whether his complaint, as a whole, alleges imminent danger of serious physical injury."); Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) ("Before denying leave to proceed IFP, courts must review a frequent filer's well-pled allegations to ensure that the prisoner is not in imminent danger.") [citation omitted]; Rivera v. Allin, 144 F.3d 719, 726 (11th Cir. 1998) ("Prior to denying leave to proceed IFP, courts must review a frequent filer prisoner's well-pled allegations to ensure that the prisoner is not under imminent danger of serious physical injury.") [internal quotation marks and citation omitted], abrogated on other grounds, Jones v. Block, 127 S. Ct. 910 (2007).
Here, Plaintiff's Complaint, which is summarized above in Part I of this Order and Report-Recommendation, does not allege facts plausibly suggesting that, at the time that he signed his Complaint (April 12, 2008), he was under imminent danger of serious physical injury. The closest that Plaintiff comes to making such an allegation is when he alleges that, following his making of "sick call" requests on April 4, 2008, and April 7, 2008 (presumably regarding his "seizures disorder" and "history of eczema"), he was seen by a nurse who denied his request for "medications [presumably including "Dilantin Phyentoin [sic] Sodium 100 mg."], [a] medical shower, and appoints. to see [a] doctor." (Dkt. No. 1, at 4 [Plf.'s Compl.].) Plaintiff's allegation about not receiving adequate care for his eczema through the provision of unspecified "medications" and a "medical shower" hardly alleges an imminent danger of serious physical injury. Moreover, his allegation about not receiving adequate care for his "seizure disorder" (apparently) through the provision of "Dilantin Phyentoin [sic] Sodium" upon his request for that drug on April 4, 2008, and April 7, 2008, does not allege that he was under an imminent danger of serious physical injury on April 12, 2008. For example, Plaintiff does not allege that (1) the medical staff at Auburn C.F. was, on April 12, 2008, refusing to see him (to the contrary, he alleges he was seen by a nurse in response to his sick call requests on April 4, 2008, and April 7, 2008), and (2) he was altogether without Dilantin Phenytoin Sodium on April 12, 2008, or that the drug was even necessary to prevent him from suffering serious-physical-injury-causing seizures on a daily basis. It is worth noting that the crux of Plaintiff's seizure claim appears to be a disagreement with a medical care professional over his need for Dilantin Phenytoin Sodium, which generally is not even actionable under 42 U.S.C. § 1983.
Under the "prison mailbox rule," the date of filing is deemed to be the date that the prisoner-plaintiff is presumed to have handed his complaint to a prison guard for mailing, which is the date that the complaint was signed. See Shaw v. Superint., Attica Corr. Facility, 03-CV-0610, 2007 WL 951459, at *3 n. 3 (N.D.N.Y. March 28, 2007) (McCurn, J.) (habeas corpus proceeding) [citations omitted]; Garraway v. Broome County, N.Y., 03-CV-0681, 2006 WL 931729, at *3-4 (N.D.N.Y. Apr. 7, 2006) (McAvoy, J.) (prisoner civil rights action) [citation omitted].
See Williams v. Louisiana, 07-CV-0602, 2007 U.S. Dist. LEXIS 46376, at *7, 11-12 (E.D. La. May 7, 2007) (prisoner was not in imminent danger of serious physical injury for purposes of 28 U.S.C. § 1915[g], where he alleged that he "has not been furnished a specialized diet for his diabetes and hypertension, nor has he been provided with eyeglasses, hearing aids, or dental plates," and he "complains of a painful skin condition and [that he] is in need of back and neck surgeries which had reportedly been recommended by his private physicians prior to him being incarcerated in 2004," but his attachments to his petition reveal that his medical complaints had not been ignored but had been "responded to in a reasonably prompt fashion") [emphasis added]); Menefee v. Pramstaller, 06-CV-12922, 2006 U.S. LEXIS 52384, at *3-4 (E.D. Mich. July 31, 2006) ("Plaintiff fails to allege that he is under imminent danger of future harm. Rather, Plaintiff complains that his medical needs are not being met regarding his dental care, allergies, podiatry issues, skin discoloration, lack of access to his eye glasses, etc.") [emphasis added].
See Murphy v. Grabo, 94-CV-1684, 1998 WL 166840, at *4 (N.D.N.Y. Apr. 9, 1998) (Pooler, J.) ("Deliberate indifference, whether evidenced by [prison] medical staff or by [prison] officials who allegedly disregard the instructions of [prison] medical staff, requires more than negligence. . . . Disagreement with prescribed treatment does not rise to the level of a constitutional claim. . . . Additionally, negligence by physicians, even amounting to malpractice, does not become a constitutional violation merely because the plaintiff is an inmate. . . . Thus, claims of malpractice or disagreement with treatment are not actionable under section 1983.") [citations omitted]."); Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp.2d 303, 312 (S.D.N.Y. 2001) (prisoner's "disagreements over medications, diagnostic techniques (e.g., the need for X-rays), forms of treatment, or the need for specialists or the timing of their intervention [with regard to the treatment of his broken finger], are not adequate grounds for a section 1983 claim. These issues implicate medical judgments and, at worst, negligence amounting to medical malpractice, but not the Eighth Amendment.") [citation omitted].
Because Plaintiff had acquired at least three strikes before he brought this action, and because he does not allege facts plausibly suggesting that he was under imminent danger of serious physical injury when he brought this action, I deny his motion to proceed in forma pauperis.
B. Deficiencies in Plaintiff's Complaint
Setting aside the prohibition established by the Three Strikes Rule, I find that Plaintiff's Complaint is subject to dismissal due to several pleading deficiencies:
(1) The handwriting of the Complaint is so illegible, and the paragraphs of the Complaint (which are not numbered) wander so freely from one circumstance to the next that the Complaint is confusing, ambiguous, vague and/or otherwise unintelligible under Fed.R.Civ.P. 8(a)(2) and 10(b);
(2) With regard to Plaintiff's apparent claim that he was deprived of adequate medical care for his foot between October 5, 2004, and April 12, 2005, that claim appears to be barred by the three-year limitations period governing claims brought under 42 U.S.C. § 1983 in federal courts sitting in New York State;
(3) With regard to any claim that Plaintiff was deprived of adequate medical care for his foot on or about November 30, 2006, that claim appears to be (or apparently will be) barred by the doctrines of res judicata and/or collateral estoppel since that claim is currently being litigated in the case of Escalara v. Fischer, 07-CV-1090, Complaint at 11 (N.D.N.Y. filed Oct. 15, 2007) (setting forth Plf.'s "Fourth Claim"), over which Judge Sharpe is presiding; and
(4) With regard to Plaintiff's claim that he was deprived of adequate medical care for his "seizure condition" and "history of eczema," his allegations about the efforts he took to exhaust his available administrative remedies regarding that claim are so specific (e.g., he filed a grievance on "4/7/08" and "4/9/08") — and yet so conspicuously devoid of any explanation of how he could have possibly appealed to, and have heard from, DOCS' Central Office Review Committee regarding that grievance by April 12, 2008 — that he has effectively "pled himself out of court" with regard to that claim.
A prisoner has no independent duty to plead facts plausibly suggesting that he exhausted his available administrative remedies, in order to state an actionable claim under 42 U.S.C. § 1983. See Jones v. Block, 127 S. Ct. 910, 919-21 (2007). "[T]his is not to say that failure to exhaust cannot be a basis for dismissal for failure to state a claim." Block, 127 S. Ct. at 919-21. If a prisoner chooses to plead facts regarding exhaustion, and those facts plausibly suggest that he failed to exhaust his available administrative remedies, then his Complaint may be dismissed for failure to state a claim. Id. at 920-21. Simply stated, if a prisoner says nothing or little about exhaustion in his pro se civil rights complaint, he is likely protected from a Fed.R.Civ.P. 12(b)(6) dismissal premised on failure to exhaust. However, if he says too much about exhaustion in that complaint so that his non-exhaustion is readily apparent, he may plead himself out of court.
For all of these reasons, I recommend that Plaintiff's Complaint be sua sponte dismissed unless, within thirty (30) days of the date of this Order and Report-Recommendation, he (1) pays the Court's filing fee of three hundred fifty dollars ($350), and (2) files an Amended Complaint that complies with Fed.R.Civ.P. 8(a)(2), 10(b), and 12(b)(6). ACCORDINGLY, it is
ORDERED that Plaintiff's motion to proceed in forma pauperis (Dkt. No. 2) is DENIED pursuant to 28 U.S.C. § 1915(g); and it is further
RECOMMENDED that the Court sua sponte DISMISS Plaintiff's Complaint (Dkt. No. 1), pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A, if he has not, within THIRTY (30) DAYS of the date of this Order and Report-Recommendation, (1) paid the Court's filing fee of three hundred fifty dollars ($350), and (2) filed an Amended Complaint that complies with Fed.R.Civ.P. 8(a)(2), 10(b), and 12(b)(6).
BE ADVISED that any objections to this Report-Recommendation must be filed with the Clerk of this Court within TEN (10) WORKING DAYS, PLUS THREE (3) CALENDAR DAYS ( see Fed.R.Civ.P. 6[d]), from the date of this Report-Recommendation. See 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72(b), Local Rule 72.1(c), and Fed.R.Civ.P. 6(a)(2).
BE ALSO ADVISED that the District Court, on de novo review, will ordinarily refuse to consider arguments, case law and/or evidentiary material that could have been, but was not, presented to the Magistrate Judge in the first instance. BE ALSO ADVISED that the failure to file timely objections to this Report-Recommendation will PRECLUDE LATER APPELLATE REVIEW of any Order of judgment that will be entered. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of H.H.S., 892 F.2d 15 [2d Cir. 1989]).
See, e.g., Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) ("In objecting to a magistrate's report before the district court, a party has no right to present further testimony when it offers no justification for not offering the testimony at the hearing before the magistrate.") [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40 n. 3 (2d Cir. 1990) (district court did not abuse its discretion in denying plaintiff's request to present additional testimony where plaintiff "offered no justification for not offering the testimony at the hearing before the magistrate"); Alexander v. Evans, 88-CV-5309, 1993 WL 427409, at *18, n. 8 (S.D.N.Y. Sept. 30, 1993) (declining to consider affidavit of expert witness that was not before magistrate) [citation omitted]; s ee also Murr v. U.S., 200 F.3d 895, 902, n. 1 (6th Cir. 2000) ("Petitioner's failure to raise this claim before the magistrate constitutes waiver."); Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendations are deemed waived.") [citations omitted]; Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir. 1994) ("By waiting until after the magistrate judge had issued its findings and recommendations [to raise its procedural default argument] . . . Respondent has waived procedural default . . . objection.") [citations omitted]; Greenhow v. Sec'y of Health Human Servs., 863 F.2d 633, 638-39 (9th Cir. 1988) ("[A]llowing parties to litigate fully their case before the magistrate and, if unsuccessful, to change their strategy and present a different theory to the district court would frustrate the purpose of the Magistrates Act."), overruled on other grounds by U.S. v. Hardesty, 977 F.2d 1347 (9th Cir. 1992); Patterson-Leitch Co. Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988) ("[A]n unsuccessful party is not entitled as of right to de novo review by the judge of an argument never seasonably raised before the magistrate.") [citation omitted].
This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me by the Honorable Gary L. Sharpe, United States District Judge, to hear and determine all pretrial matters (of a non-dispositive nature) and issue report-recommendations on all dispositive matters before the Court, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). On May 27, 2008, I issued (1) an Order denying Plaintiff's motion to proceed in forma pauperis because of the "Three Strikes" Rule (pursuant to 28 U.S.C. §§ 1915[g]), and (2) a Report-Recommendation that the Court dismiss Plaintiff's Complaint (pursuant to 28 U.S.C. §§ 1915[e][2][B][ii], 1915A) if he has not, within thirty (30) days, (1) paid the Court's filing fee of three hundred fifty dollars ($350), and (2) filed an Amended Complaint that complies with Fed.R.Civ.P. 8(a)(2), 10(b), and 12(b)(6). (Dkt. No. 7.)
On July 8, 2008 (after being granted two extensions of time by which to do so), Plaintiff filed an Amended Complaint. (Dkt. Nos. 9-11.) However, Plaintiff failed to pay the Court's filing fee of three hundred fifty dollars. ( See Docket Sheet.) Indeed, in his Amended Complaint, Plaintiff alleges that he "is without funds and has no way of paying this amount $350.00 to the court in time allowed." (Dkt. No. 11, at 7 [Plf.'s Am. Compl.].) Instead, Plaintiff has apparently attempted to allege that he was in imminent danger of serious physical injury at the time he brought this action, thus falling under an exception to the "Three Strikes" Rule. Out of special solicitude to Plaintiff, I have carefully scrutinized his Amended Complaint for any factual allegations plausibly suggesting that he was in imminent danger of serious physical injury at the time he brought this action. However, I have found none.
I say "apparently" because Plaintiff's handwritten Amended Complaint, like his original handwritten Complaint, is barely legible and wanders freely from one circumstance to the next in a confusing fashion. ( Compare Dkt. No. 1 [Plf.'s Original Compl.] with Dkt. No. 11 [Plf.'s Am. Compl.]; see also Dkt. No. 7, at 8 [Report-Recommendation of May 27, 2008].)
As explained in my prior Report-Recommendation, when determining whether a prisoner has qualified for the "imminent danger" exception, courts look at the non-conclusory allegations in the plaintiff's complaint. See, e.g., Johnson v. Connolly, 07-CV-0158, 2008 WL 724167, at *9 n. 18 (N.D.N.Y. March 17, 2008) (on de novo review, adopting Report-Recommendation of Lowe, M.J., recommending revocation of plaintiff's in forma pauperis status due to "Three Strikes Rule" in part because plaintiff had not, in his complaint, asserted non-conclusory allegations that he was in imminent danger of serious physical injury) [citations omitted]; Welch v. Fisher, 07-CV-0929, 2007 WL 3231992, at *1-2 (N.D.N.Y. Oct. 30, 2007) (McAvoy, J.) (concluding that plaintiff had failed to allege imminent danger of serious physical injury) [citations omitted]; Abdrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) ("[A]ll [circuits] maintain a singular focus on the facts alleged in the complaint in deciding whether a prisoner faced the requisite harm.") [collecting cases]; Ibrahim v. Dist. of Columbia, 463 F.3d 3, 6 (D.C. Cir. 2006) ("In determining whether he qualifies [for the 'imminent danger' exception], we look to the complaint. . . ."); Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004) ("[T]he issue [under § 1915(g)] is whether his complaint, as a whole, alleges imminent danger of serious physical injury."); Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) ("Before denying leave to proceed IFP, courts must review a frequent filer's well-pled allegations to ensure that the prisoner is not in imminent danger.") [citation omitted]; Rivera v. Allin, 144 F.3d 719, 726 (11th Cir. 1998) ("Prior to denying leave to proceed IFP, courts must review a frequent filer prisoner's well-pled allegations to ensure that the prisoner is not under imminent danger of serious physical injury.") [internal quotation marks and citation omitted], abrogated on other grounds, Jones v. Block, 127 S. Ct. 910 (2007).
As explained in my prior Report-Recommendation, the date that Plaintiff "brought this action," for purposes of the "Three Strikes" Rule, was April 12, 2008 (which was the date on which he signed his original Complaint). (Dkt. No. 7, at 5-6 n. 4.) The only portions of Plaintiff's Amended Complaint that allege any physical injuries at all occurring after 2007 are Paragraphs 2, 7, 8, and 9 of his Amended Complaint.
Specifically, in Paragraph 2 of his Amended Complaint, Plaintiff alleges as follows, in pertinent part:
On the 24th day of June, 2008, [during an] Auburn Corr. Fac. Medical appt. at approx. 9:50 AM[,] . . . [a] health care provider . . . discovered that I have a hernia in the lower left hand side of stomach near the groin due to excessive force of being ass[a]ulted by CO. Bradely on the 8th day of June 2006. . . . [Now I am] to see [a] surgeon — Dr. Cutie.
(Dkt. No. 11, ¶ 2 [Plf.'s Am. Compl.].) However, Plaintiff alleges no facts plausibly suggesting that he was in imminent danger of serious physical injury at the time he brought this action, i.e., on April 12, 2008. ( Id.) Moreover, even if I were to liberally construe the time-of-filing element of the "Three Strikes" Rule so that it included the date on which Plaintiff signed his Amended Complaint (on July 3, 2008), I would still find that Plaintiff alleges no facts plausibly suggesting that he was in imminent danger of serious physical injury at the time he brought this action. This is because Plaintiff does not allege that any medical care provider was (at the time question) refusing to see him, or care for him, with regard to his hernia condition. To the contrary, he alleges that, on June 24, 2008, a health care provider diagnosed the hernia condition; and that, on that same date, he was scheduled to be cared for by a surgeon. ( Id. at ¶ 2.) As a result, this case is analogous to the case of Green v. Quigley, in which the U.S. District Court for the Western District of Missouri ruled that, because a prisoner had alleged facts plausibly suggesting that he was receiving medical care for his hernia (although not the medical care he would have liked), he was not in imminent danger of serious physical injury at the time he brought his action, for purposes of the "Three Strikes" Rule. Green v. Quigley, 04-CV-4316, 2005 U.S. Dist. LEXIS 42903, at *1-3 (W.D. Mo. July 29, 2005).
(Dkt. No. 11, at 7 [Plf.'s Am. Compl.].)
In Paragraph 7 of his Amended Complaint, Plaintiff alleges as follows, in pertinent part:
Under the imminent danger of serious physical injury when this civil action was brought into existence [I] had filed grievances . . . [regarding] the incident which had occurred on the 10th day of February 2008. [On that date] Lieutenant Burnes had opened my cell to . . . question [me] about a grievance that was written by [me]. When [I] began to explain[,] Lt. Burnes reached out with his right hand, slapping [me] across the [illegible] side of face while in pursuit of [me] going up the stairs in C-Block.
( Id. at ¶ 7.) A slap in the face in February of 2008 hardly constitutes imminent danger of serious physical injury in April or July of 2008.
Finally, in Paragraphs 8 and 9 of his Amended Complaint, Plaintiff alleges as follows, in pertinent part:
[O]n the 18th day of August, 2006 [D.O.C.S.] performed surgery on [my] right foot big toe [to remove a] bunion . . . and the same procedure was to be done to the left foot. [Since then, I have] been to two different [Special Housing Units — at] Upstate Corr. Fac. and Governeur Corr. Fac. And [I have] been told to wait until I reach the next facility, Auburn [Corr. Fac.], in order to speak with my primary care provider [about having the bunion on my left big toe removed]. Two years have [passed] and [I have] been told to wait until [I get] home in order to have the procedure taken care of. . . . The condition was obvious [and] D.O.C.S. purposefully ignored it. . . .
In [any] event[,] the judges [of] this court, [the] Northern District [of New York,] ha[ve] ignored the fact that [I have] been refused [m]y medical [care by] D.O.C.S. . . . from [August] of 2006 to the 7th day of May, 2008[,] beginning with the unfinished procedure of foot toe bunion. . . . [In addition, I] was keeplocked for 30 days [for requesting] . . . Sick Call in Auburn Corr. Fac. on . . . April 4 and April 7, 2008. When requesting to see [a] medical care provider, [I was] told by [an] Administrative Nurse [that] showers are for homosexuals, and [that] if [I] was to have a seizure there would not be anything they could do. Knowing [I] was out of medication[,] . . . she stated [that,] due to not having sore[s] on [my] face and body, [I] shouldn't be allowed to have the medication for Eczema and [that] if it was left to [her], [I] would not receive it. [She] [s]tated [that] on the 8th day of April, 2008.
( Id. at ¶¶ 8-9.) Having a foot bunion does not constitute being in imminent danger of serious physical injury. Nor does having eczema constitute being in imminent danger of serious physical injury.
See Menefee v. Pramstaller, 06-CV-12922, 2006 U.S. LEXIS 52384, at *3-4 (E.D. Mich. July 31, 2006) ("Plaintiff fails to allege that he is under imminent danger of future harm. Rather, Plaintiff complains that his medical needs are not being met regarding his dental care, allergies, podiatry issues, skin discoloration, lack of access to his eye glasses, etc.") [emphasis added]; cf. Rhoden v. Powers, 05-CV-0625, 2007 U.S. Dist. LEXIS 6460, at *3 (S.D. Ill. Jan. 29, 2007) prisoner was not in imminent danger of serious physical injury for purposes of 28 U.S.C. § 1915[g], where he alleged that prison medical staff was being negligent with regard to his "problems with athlete's foot, as well as some pain near his lungs") [emphasis added].
See Williams v. Louisiana, 07-CV-0602, 2007 U.S. Dist. LEXIS 46376, at *7, 11-12 (E.D. La. May 7, 2007) (prisoner was not in imminent danger of serious physical injury for purposes of 28 U.S.C. § 1915[g], where he alleged that he "has not been furnished a specialized diet for his diabetes and hypertension, nor has he been provided with eyeglasses, hearing aids, or dental plates," and he "complains of a painful skin condition and [that he] is in need of back and neck surgeries which had reportedly been recommended by his private physicians prior to him being incarcerated in 2004," but his attachments to his petition reveal that his medical complaints had not been ignored but had been "responded to in a reasonably prompt fashion") [emphasis added]); Menefee, 2006 U.S. LEXIS 52384, at *3-4 ("Plaintiff fails to allege that he is under imminent danger of future harm. Rather, Plaintiff complains that his medical needs are not being met regarding his dental care, allergies, podiatry issues, skin discoloration, lack of access to his eye glasses, etc.") [emphasis added].
With regard to his alleged seizure disorder, Plaintiff alleges no facts plausibly suggesting that the denial of showers on April 4 and 7, 2008, would cause him to experience seizures, on April 12, 2008 (if ever). ( Id.) Rather, Plaintiff appears to be alleging that, by denying him what he called a "medical shower" on page 4 of his original Complaint (a pleading that has been superseded in its entirety by the filing of his Amended Complaint), the unidentified "Administrative Nurse" has denied him the ability to access a shower that would somehow accommodate his seizure condition (perhaps by having non-slip flooring materials and handrails in the event he experienced a seizure during the shower). To the extent that Plaintiff is so alleging, the "serious physical injury" that he is alleging (e.g., fractures or unconsciousness due to slipping or falling) is entirely speculative; thus, there is no "imminent risk" of that injury. Simply stated, the denial of access to "medical showers" or handicap-accessible showers, in and of itself, does not place an inmate in imminent danger of serious physical injury. Finally, I note that the crux of Plaintiff's seizure claim appears to be a disagreement with a medical care professional over the appropriate care or treatment needed for his seizure disorder, which is not even actionable under 42 U.S.C. § 1983.
To the extent that Plaintiff is alleging that the physical injury he is experiencing is the denial of the ability to shower without the fear of falling, I note that the denial of occasional showers does not place one in imminent danger of serious physical injury. See Bowler v. Kendrick, 08-CV-0210, 2008 U.S. Dist. LEXIS 19710, at *2 (W.D. Va. March 13, 2008) (prisoner was not in imminent danger of serious physical injury for purposes of 28 U.S.C. § 1915[g], where he alleged that he was occasionally being denied showers and recreation).
See Grandinetti v. Bateman, 08-CV-0575, 2008 U.S. Dist. LEXIS 34061, at *2-3 (D. Ariz. Apr. 15, 2008) (prisoner was not in imminent danger of serious physical injury for purposes of 28 U.S.C. § 1915[g], where he alleged that he was being denied, inter alia, "medical showers"); Williams v. Birkett, 07-CV-12532, 2007 U.S. Dist. LEXIS 62058, at *3-5 (E.D. Mich. Aug. 23, 2007) (prisoner was not in imminent danger of serious physical injury for purposes of 28 U.S.C. § 1915[g], where he alleged that he was being denied access to a shower that could accommodate his handicap), accord, Fuller v. Johnson County Md. of County Comm'rs, 07-CV-3001, 2007 U.S. Dist. LEXIS 12179, at *2-4 (D. Kan. Feb. 16, 2007). I note that it appears that being denied "slip guards and guard rails" in a prison shower is not even actionable under 42 U.S.C. § 1983. See Payton v. Epps, 82 F. App'x 399, 399 (5th Cir. 2003).
See Murphy v. Grabo, 94-CV-1684, 1998 WL 166840, at *4 (N.D.N.Y. Apr. 9, 1998) (Pooler, J.) ("Deliberate indifference, whether evidenced by [prison] medical staff or by [prison] officials who allegedly disregard the instructions of [prison] medical staff, requires more than negligence. . . . Disagreement with prescribed treatment does not rise to the level of a constitutional claim. . . . Additionally, negligence by physicians, even amounting to malpractice, does not become a constitutional violation merely because the plaintiff is an inmate. . . . Thus, claims of malpractice or disagreement with treatment are not actionable under section 1983.") [citations omitted]."); Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp.2d 303, 312 (S.D.N.Y. 2001) (prisoner's "disagreements over medications, diagnostic techniques (e.g., the need for X-rays), forms of treatment, or the need for specialists or the timing of their intervention [with regard to the treatment of his broken finger], are not adequate grounds for a section 1983 claim. These issues implicate medical judgments and, at worst, negligence amounting to medical malpractice, but not the Eighth Amendment.") [citation omitted].
For all of these reasons, I find that Plaintiff is not entitled to benefit from the "imminent danger" exception to the "Three Strikes" Rule, and that he must pay the Court's filing fee. Because he has not done so, and has expressed his inability to do so, I recommend that his Complaint be dismissed.
Because I have already found that a reason exists to dismiss Plaintiff's Amended Complaint, I need not, and do not, address the issue of whether Plaintiff's Amended Complaint corrects the pleading deficiencies (pursuant to Fed.R.Civ.P. 8[a][2], 10[b], and 12[b][6]) in his original Complaint, which I identified in my prior Report-Recommendation. ( See Dkt. No. 7, at 8-9 [Report-Recommendation of May 27, 2008].) However, in the event the Court finds it necessary, I would of course promptly do so. ACCORDINGLY, it is
RECOMMENDED that Plaintiff's Amended Complaint (Dkt. No. 11) be DISMISSED due to (1) Plaintiff's failure to pay the Court's filing fee of three hundred fifty dollars ($350), and (2) his failure, in his Amended Complaint, to allege facts plausibly suggesting that he is entitled to benefit from the exception to the "Three Strikes" Rule ( 28 U.S.C. §§ 1915[g]) for cases in which prisoners were in imminent danger of serious physical injury at the time they brought the action.
ANY OBJECTIONS to this Supplemental Report-Recommendation must be filed with the Clerk of this Court within TEN (10) WORKING DAYS, PLUS THREE (3) CALENDAR DAYS from the date of this Supplemental Report-Recommendation (unless the third calendar day is a legal holiday, in which case add a fourth calendar day). See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); N.D.N.Y. L.R. 72.1(c); Fed.R.Civ.P. 6(a)(2), (d).
BE ADVISED that the District Court, on de novo review, will ordinarily refuse to consider arguments, case law and/or evidentiary material that could have been, but were not, presented to the Magistrate Judge in the first instance. BE ALSO ADVISED that the failure to file timely objections to this Supplemental Report-Recommendation will PRECLUDE LATER APPELLATE REVIEW of any Order of judgment that will be entered. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of H.H.S., 892 F.2d 15 [2d Cir. 1989]).
See, e.g., Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) ("In objecting to a magistrate's report before the district court, a party has no right to present further testimony when it offers no justification for not offering the testimony at the hearing before the magistrate.") [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40 n. 3 (2d Cir. 1990) (district court did not abuse its discretion in denying plaintiff's request to present additional testimony where plaintiff "offered no justification for not offering the testimony at the hearing before the magistrate"); Alexander v. Evans, 88-CV-5309, 1993 WL 427409, at *18 n. 8 (S.D.N.Y. Sept. 30, 1993) (declining to consider affidavit of expert witness that was not before magistrate) [citation omitted]; see also Murr v. U.S., 200 F.3d 895, 902, n. 1 (6th Cir. 2000) ("Petitioner's failure to raise this claim before the magistrate constitutes waiver."); Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendations are deemed waived.") [citations omitted]; Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir. 1994) ("By waiting until after the magistrate judge had issued its findings and recommendations [to raise its procedural default argument] . . . Respondent has waived procedural default . . . objection.") [citations omitted]; Greenhow v. Sec'y of Health Human Servs., 863 F.2d 633, 638-39 (9th Cir. 1988) ("[A]llowing parties to litigate fully their case before the magistrate and, if unsuccessful, to change their strategy and present a different theory to the district court would frustrate the purpose of the Magistrates Act."), overruled on other grounds by U.S. v. Hardesty, 977 F.2d 1347 (9th Cir. 1992); Patterson-Leitch Co. Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988) ("[A]n unsuccessful party is not entitled as of right to de novo review by the judge of an argument never seasonably raised before the magistrate.") [citation omitted].