Opinion
3:24-CV-0474 (GTS/ML)
06-05-2024
DAVID C. LETTIERI, Plaintiff, v. ERIC SCHEMIT, Defendant.
DAVID C. LETTIERI Plaintiff, Pro Se.
DAVID C. LETTIERI
Plaintiff, Pro Se.
ORDER AND REPORT-RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
I. BACKGROUND
A. Procedural History
Plaintiff David C. Lettieri (“Plaintiff”) commenced this civil rights action pro se on April 4, 2024, on a form complaint alleging that his rights were violated by Defendant Eric Schemit (“Defendant”). (Dkt. No. 1.) Plaintiff did not pay the filing fee for this action and sought leave to proceed in forma pauperis (“IFP”). (Dkt. Nos. 2, 3.) On April 24, 2024, the undersigned denied Plaintiff's IFP application as incomplete. (Dkt. No. 4.) On May 16, 2024, Plaintiff filed an amended application to proceed IFP (Dkt. No. 6) and Letter Request/Motion seeking discovery (Dkt. No. 5).
B. Complaint
Construed as liberally as possible, Plaintiff's Complaint appears to allege that on November 5, 2020, Defendant violated his rights by giving keys to Plaintiff's property without Plaintiff's consent. (See generally Dkt. No. 1.)
The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
Based on these factual allegations, Plaintiff appears to assert the following three claims: (1) a claim of unlawful search and seizure pursuant to the Fourth Amendment and 42 U.S.C. § 1983; (2) a claim of excessive force in violation of the Fourth Amendment and 42 U.S.C. § 1983; and (3) a claim that Plaintiff's due process rights pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983 were violated. (Id. at 4.) As relief, Plaintiff seeks $1,000,000 in damages and “liability for future” losses from any additional items stolen from Plaintiff's property. (Id. at 5.)
Plaintiff seeks leave to proceed IFP. (Dkt. No. 6.)
II. PLAINTIFF'S AMENDED APPLICATION TO PROCEED IFP
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 and five dollars ($405.00). The Court must also determine whether the “three strikes” provision of 28 U.S.C. § 1915(g) (“Section 1915(g)”) bars the plaintiff from proceeding IFP and without prepayment of the filing fee. More specifically, Section 1915(g) provides as follows:
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 consider the sufficiency of the claims stated in the complaint in accordance with 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A.
In this case, Plaintiff has failed to demonstrate economic need through his amended IFP application, because he fails to provide the value of (1) the money he has in cash or in a checking or savings account (Dkt. No. 6 at ¶ 4), and (2) the three real estate properties he owns (id. at ¶ 5). Moreover, Plaintiff's amended IFP application is the short form IFP application, which does not contain the certificate portion to be completed by an appropriate official at Plaintiff's institution of incarceration pursuant to N.D.N.Y. L.R. 5.1.4(b)(1)(A). (Compare Dkt. No. 2, with Dkt. No. 6.) Thus, the amended IFP application does not comply with 28 U.S.C. § 1915(a)(2), which requires that an IFP request be accompanied by “a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2).
The amended IFP application explicitly directs that if Plaintiff has “an account in the institution” in which he is incarcerated, he must attach to his IFP application “a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months for any institutional account in [his] name.” (Dkt. No. 6 at ¶ 1.)
As a result, the undersigned could deny Plaintiff's amended IFP application without prejudice on these bases alone. However, as will be discussed below, because Plaintiff has three strikes and his Complaint does not allege that he was in imminent danger at the time of filing, his second amended IFP application is denied with prejudice.
Plaintiff has filed the inmate authorization form required in the Northern District of New York. (Dkt. No. 3.) Thus, the Court must determine whether the “three strikes” rule of Section 1915(g) bars Plaintiff from proceeding with this action IFP.
A. Determination of “Strikes”
Plaintiff is a frequent litigator, having commenced at least thirteen pro se actions in the Northern District of New York since August 30, 2023. In re Lettieri, 24-PF-0001, 2024 WL 1655374, at *2, n.1 (N.D.N.Y. Apr. 17, 2024) (Sannes, C.J.).
Upon review of those actions and actions filed by Plaintiff in other districts, and consistent with the determinations reached by Chief District Judge Brenda K. Sannes in Lettieri v. Vestal Police, 24-CV-0198, 2024, 1616330, at *2 (N.D.N.Y. Apr. 15, 2024) (Sannes, C.J.), the Honorable Hector Gonzalez in Lettieri v. Broome Cnty. Humane Soc'y, 20-CV-7777, 23-CV-7830, 2023 WL 7017081, at *2 (E.D.N.Y. Oct. 25, 2023), denying recons., 2023 WL 8003478, (E.D.N.Y. Nov. 17, 2023), and the Honorable Lawrence J. Vilardo in Lettieri v. Broome Cnty. Humane Soc'y, 23-CV-1223, 2023 WL 9066861, at *2 (W.D.N.Y. Dec. 4, 2023), and Lettieri v. Auricchio, 23-CV-1121, 2023 WL 9066873, at *2 (W.D.N.Y. Dec. 4, 2023), this Court finds that, as of the date that Plaintiff commenced this action, he had acquired at least three “strikes.”As a result, Plaintiff's Amended IFP Application must be denied unless it appears that the “imminent danger” exception to the “three strikes” rule set forth in Section 1915(g) is applicable to this action.
The actions in which Plaintiff acquired strikes are as follows: (1) Lettieri v. W. Dist. of N.Y., 23-CV-7508, Dkt. No. 28 (March 13, 2024); (2) Lettieri v. W. Dist. of N.Y., 23-CV-0770 (W.D.N.Y. Sept. 11, 2023), Dkt. No. 7; (3) Lettieri v. U.S. Dep't of Justice, 23-CV-0866 (W.D.N.Y. Sept. 19, 2023), Dkt. No. 3; and (4) Lettieri v. Vilardo, 23-CV-6498 (W.D.N.Y. Sept. 21, 2023), Dkt. No. 3.
Before the Complaint in this action was filed, Plaintiff had been informed several times that he had accumulated three strikes. See, e.g., Lettieri v. Bonanno, 23-CV-6515, 2023 WL 9184676, at *1 n.4 (W.D.N.Y. Dec. 18, 2023) (“Following the filing of this action, this Court found Plaintiff had garnered three strikes under 28 U.S.C. § 1915(g), and, therefore, could not proceed IFP without showing that he is under “imminent danger of serious physical injury.”); Lettieri v Bonanno, 23-CV-1081, 2023 WL 9421209, at *2 (W.D.N.Y. Dec. 4, 2023) (internal citations omitted) (“The three strikes rule squarely applies here. In addition to this case, [Plaintiff] has filed more than 50 actions in this Court in the past year. At least three of those cases were dismissed because the defendants were immune from suit ....[Thus,] Lettieri has accumulated three strikes under 28 U.S.C. § 1915(g).”); Lettieri v. Auricchio, 23-CV-1121, 2023 WL 9066873, at *2 (W.D.N.Y. Dec. 4, 2023) (same); Lettieri v. Broome Cnty. Humane Soc'y, 23-CV-1223, 2023 WL 9066861, at *2 (W.D.N.Y. Dec. 4, 2023) (same); Lettieri v. Broome Cnty. Humane Soc'y, 23-CV-7777, 23-CV-7830, 2023 WL 8003478, at *1 (E.D.N.Y. Nov. 17, 2023) (“Plaintiff incorrectly argues that the prison mailbox rule means that each of these two cases was deemed filed before he received the third dismissal relied upon by the Court to invoke the three-strikes rule.”); Lettieri v. Broome Cnty. Humane Soc'y, 23-CV-7777, 23-CV-7830, 2023 WL 7017081, at *2 (E.D.N.Y. Oct. 25, 2023) (“Plaintiff falls within this prohibition because at least three of the cases that he has filed in the Western District on an in forma pauperis basis were dismissed sua sponte for failure to state a claim.”). Notwithstanding this information, Plaintiff falsely represented in the Complaint that he had not accumulated three strikes before the commencement of this action. (Dkt. No. 1 at 8.)
B. Applicability of the “Imminent Danger” Exception
The “imminent danger” exception protects a prison inmate exposed to potential serious physical injury from the consequences of his earlier mistakes in filing frivolous litigation. 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). The Second Circuit has 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.” Chavis, 618 F.3d 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); Akassy v. Hardy, 887 F.3d 91, 96 (2d Cir. 2018). However, “allegations of past violence can satisfy the imminent danger exception when, for example, the past harms are part of an ongoing pattern of acts.” Carter v. New York State, 20-CV-5955, 2020 WL 4700902, at *1 (S.D.N.Y. Aug. 12, 2020) (citing Chavis, 618 F.3d at 170 (holding that “[a]n allegation of a recent brutal beating, combined with three separate threatening incidents, some of which involved officers who purportedly participated in that beating, is clearly the sort of ongoing pattern of acts that satisfies the imminent danger exception.”)).
In addition, “§ 1915(g) allows a three-strikes litigant to proceed [IFP] only when there exists 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 29899.
In this case, the Complaint alleges that over three years before filing this action, Defendant violated his civil rights. (Dkt. No. 1 at 5.) These allegations fail to plausibly suggest that Plaintiff was “under imminent danger of serious physical injury” when he signed his complaint on October 24, 2023. (Dkt. No. 1 at 11.) Therefore, Plaintiff is barred from proceeding IFP under Section 1915.
To the extent that Plaintiff pays the filing fee this matter shall be returned to the undersigned for a review of the Complaint pursuant to 28 U.S.C. § 1915A. Plaintiff's Letter Motion (Dkt. No. 5) is denied without prejudice to refiling upon payment of the filing fee.
ACCORDINGLY, it is
ORDERED that Plaintiff's amended IFP application (Dkt. No. 6) is DENIED; and it is further
ORDERED that Plaintiff's Letter Request/Motion (Dkt. No. 5) is DENIED without prejudice; and it is further respectfully
RECOMMENDED that should Plaintiff wish to proceed with this action, he be required to pay the $405.00 filing and administrative fees within thirty (30) days from the filing of an Order by the assigned District Judge adopting this Order and Report-Recommendation. It is recommended that should Plaintiff fail to pay the full filing and administrative fees within thirty (30) days of the date of such an order, the case be dismissed without prejudice and without further order of the Court; and it is further
ORDERED that the Clerk of the Court shall file a copy of this order and reportrecommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 6(a), 6(d), 72; 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)).
If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order 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.P. 6(a)(1)(C).