Opinion
3:24-CV-0198 (BKS/ML)
03-14-2024
DAVID C. LETTIERI, Plaintiff, v. VESTAL POLICE, Defendant.
DAVID C. LETTIERI Plaintiff, Pro Se Niagara County Jail
APPEARANCES:
OF COUNSEL:
DAVID C. LETTIERI Plaintiff, Pro Se Niagara County Jail
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 February 9, 2024, on a form complaint alleging that his rights were violated by Defendant Vestal Police (“Defendants”). (Dkt. No. 1.) Plaintiff did not pay the filing fee for this action and seeks leave to proceed in forma pauperis (“IFP”). (Dkt. Nos. 2, 3.)
B. Complaint
Construed as liberally as possible, Plaintiff's Complaint appears to allege that in October 2018, an ex-girlfriend tried to stab him with a knife but that police officers employed by Defendant refused to file criminal charges. (Dkt. No. 1.) Based on these factual allegations, Plaintiff appears to assert the following two claims: (1) a claim of unequal protection; and (2) a claim of failure to protect. (Id. at 3.) As relief, Plaintiff seeks $100,000 in damages. (Id. at 5.)
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)).
Plaintiff seeks leave to proceed IFP. (Dkt. No. 2.)
II. PLAINTIFF'S 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 IFP application, because he failed to answer questions numbered 2 through 6 on the prisoner IFP application. (Dkt. No. 2 at ¶¶ 2-6.) As a result, the undersigned could deny Plaintiff's IFP application without prejudice on this basis 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 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, in addition to this action, at least eighty-six civil actions in the federal district courts since 2022. See PACER Case Locator <https://pcl.uscourts.gov/pcl/pages/search/findParty.jsf> (last visited March 13, 2024). The following is a list of those actions: (1) Lettieri v. Facebook, No. 23-CV-6554 (N.D. Cal. filed Dec. 20, 2023); (2) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-1099 (N.D.N.Y. filed Aug. 30, 2023); (3) Lettieri v. Northeast Ohio Corr. Cent., No. 23-CV-1136 (N.D.N.Y. filed Sept. 5, 2023); (4) Lettieri v. Dep't of Justice, No. 23-CV-1272 (N.D.N.Y. filed Oct. 12, 2023);(5) Lettieri v. Garver, No. 23-CV-1421 (N.D.N.Y. filed Nov. 15, 2023); (6) Lettieri v. Brigueal, No. 23-CV-1597 (N.D.N.Y. filed Dec. 18, 2023); (7) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0309 (W.D.N.Y. filed Apr. 6, 2023); (8) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0318 (W.D.N.Y. filed Apr. 10, 2023); (9) Lettieri v. United States Fed. Marshals, No. 23-CV-0246 (W.D.N.Y. filed Mar. 20, 2023); (10) Lettieri v. Fed. Marshals, No. 23-CV-0359 (W.D.N.Y. filed Apr. 24, 2023); (11) Lettieri v. Auricchio, No. 23-CV-0441 (W.D.N.Y. filed May 17, 2023); (12) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0442 (W.D.N.Y. filed May 17, 2023); (13) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0471 (W.D.N.Y. filed May 30, 2023); (14) Lettieri v. Daniels, No. 23-CV-0487 (W.D.N.Y. filed June 5, 2023); (15) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0503 (W.D.N.Y. filed June 7, 2023); (16) Lettieri v. Univ. of Rochester, No. 23-CV-0504 (W.D.N.Y. filed June 7, 2023); (17) Lettieri v. Town of Colesville, No. 23-CV-0519 (W.D.N.Y. filed June 9, 2023); (18) Lettieri v. Dep't of Justice, No. 23-CV-0517 (W.D.N.Y. filed June 9, 2023); (19) Lettieri v. New York State Police, No. 23-CV-0518 (W.D.N.Y. filed June 9, 2023); (20) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0679 (W.D.N.Y. filed July 12, 2023); (21) Lettieri v. Dep't of Justice, No. 23-CV-0697 (W.D.N.Y. filed July 14, 2023); (22) Lettieri v. Dep't of Justice, No. 23-CV-0698 (W.D.N.Y. filed July 14, 2023); (23) Lettieri v. Dep't of Justice, No. 23-CV-0699 (W.D.N.Y. filed July 14, 2023); (24) Lettieri v. Dep't of Justice, No. 23-CV-0696 (W.D.N.Y. filed July 14, 2023); (25) Lettieri v. Dep't of Justic [sic], No. 23-CV-0695 (W.D.N.Y. filed July 14, 2023); (26) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0708 (W.D.N.Y. filed July 17, 2023); (27) Lettieri v. Dep't of Justice, No. 23-CV-0704 (W.D.N.Y. filed July 17, 2023); (28) Lettieri v. Dep't of Justice, No. 23-CV-0707 (W.D.N.Y. filed July 17, 2023); (29) Lettieri v. Dep't of Justice, No. 23-CV-0705 (W.D.N.Y. filed July 17, 2023); (30) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0706 (W.D.N.Y. filed July 17, 2023); (31) Lettieri v. Dep't of Justice, No. 23-CV-0721 (W.D.N.Y. filed July 19, 2023); (32) Lettieri v. Dep't of Justice, No. 23-CV-0722 (W.D.N.Y. filed July 19, 2023); (33) Lettieri v. Broome Cnty. Humane Soc'y, No. 23-CV-0747 (W.D.N.Y. filed July 26, 2023); (34) Lettieri v. Dep't of Justice, No. 23-CV-0749 (W.D.N.Y. filed July 26, 2023); (35) Lettieri v. Fed. Public Def., No. 23-CV-0748 (W.D.N.Y. filed July 26, 2023); (36) Lettieri v. Suffolk Cnty. Police, No. 23-CV-0757 (W.D.N.Y. filed July 27, 2023); (37) Lettieri v. Dep't of Justice, No. 23-CV-0762 (W.D.N.Y. filed July 28, 2023); (38) Lettieri v. Dep't of Justice, No. 23-CV-0771 (W.D.N.Y. filed July 31, 2023); (39) Lettieri v. Dep't of Justice, No. 23-CV-0774 (W.D.N.Y. filed Aug. 1, 2023); (40) Lettieri v. W. Dist. of New York, No. 23-CV-0770 (W.D.N.Y. filed July 31, 2023); (41) Lettieri v. Dep't of Justice, No. 23-CV-0788 (W.D.N.Y. filed Aug. 4, 2023); (42) Lettieri v. Daniels, No. 23-CV-0867 (W.D.N.Y. filed Aug. 21, 2023); (43) Lettieri v. Dep't of Justice, No. 23-CV-0865 (W.D.N.Y. filed Aug. 21, 2023); (44) Lettieri v. Dep't of Justice, No. 23-CV-0866 (W.D.N.Y. filed Aug. 21, 2023); (45) Lettieri v. Auricchio, No. 23-CV-0875 (W.D.N.Y. filed Aug. 22, 2023); (46) Lettieri v. Vilardo, No. 23-CV-6498 (W.D.N.Y. filed Aug. 28, 2023); (47) Lettieri v. Four in One, No. 23-CV-0898 (W.D.N.Y. filed Aug. 28, 2023); (48) Lettieri v. Dep't of Justice, No. 23-CV-0897 (W.D.N.Y. filed Aug. 28, 2023); (49) Lettieri v. Olivett Prods., No. 23-CV-0906 (W.D.N.Y. filed Aug. 30, 2023); (50) Lettieri v. Reynolds, No. 23-CV-0925 (W.D.N.Y. filed Sept. 1, 2023); (51) Lettieri v. Bonanno, No. 23-CV-1081 (W.D.N.Y. filed Oct. 6, 2023); (52) Lettieri v. Post Consumer Brands, No. 23-CV-1080 (W.D.N.Y. filed Oct. 6, 2023); (53) Lettieri v. Powell, No. 23-CV-1082 (W.D.N.Y. Oct. 6, 2023); (54) Lettieri v. Aurrichio, No. 23-CV-1121 (W.D.N.Y. Oct. 25, 2023); (55) Lettieri v. Hockwater, No. 23-CV-1123 (W.D.N.Y. Oct. 25, 2023); (56) Lettieri v. City of Binghamton, No. 23-CV-1122 (W.D.N.Y. filed Oct. 25, 2023); (57) Lettieri v. The Broome Cnty. Humane, No. 23-CV-1223 (W.D.N.Y. filed Nov. 22, 2023); (58) Lettieri v. Keefe Grp., No. 23-CV-1224 (W.D.N.Y. filed Nov. 22, 2023); (59) Lettieri v. City of Binghamton, No. 23-CV-1243 (W.D.N.Y. filed Nov. 29, 2023); (60) Lettieri v. Broome Cnty. Humane Soc'y, No. 23-CV-1268 (W.D.N.Y. filed Dec. 7, 2023); (61) Lettieri v. Broome Cnty. Humane Soc'y, No. 23-CV-1270 (W.D.N.Y. filed Dec. 7, 2023); (62) Lettieri v. Wyoming Cnty. Sheriffs, No. 23-CV-1303 (W.D.N.Y. filed Dec. 18, 2023); (63) Lettieri v. Fed. Marshals, No. 23-CV-1305 (W.D.N.Y. filed Dec. 20, 2023); (64) Lettieri v. Gunnip, No. 23-CV-1306 (W.D.N.Y. filed Dec. 20, 2023); (65) Lettieri v. Vilando, No. 23-CV-1660 (N.D. Ohio filed Aug. 25, 2023); (66) Lettieri v. Vilando, No. 23-CV-1686 (N.D. Ohio filed Aug. 29, 2023); (67) Lettieri v. Northeast Ohio Corr. Ctr., No. 23-CV-1690 (N.D. Ohio filed Aug. 29, 2023); (68) Lettieri v. Fed. Marshals, No. 23-CV-1872 (N.D. Ohio filed Sept. 26, 2023); (69) Lettieri v. New York State Troopers, No. 23-CV-2077 (N.D. Ohio filed Oct. 23, 2023); (70) Lettieri v. Fed. Marshals, No. 23-CV-2167 (N.D. Ohio filed Nov. 6, 2023); (71) Lettieri v. Fed. Marshals, No. 23-CV-2202 (N.D. Ohio filed Nov. 30, 2023); (72) Lettieri v. Northeast Ohio Corr. Ctr., No. 24-CV-0032 (N.D. Ohio filed Jan. 5, 2024); (73) Lettieri v. Performance Food Grp., No. 24-CV-0053 (E.D. Va. filed Jan. 18, 2024); (74) Lettieri v. Fed. Marshals, No. 23-CV-3317 (D.D.C. filed Nov. 2, 2023); (75) Lettieri v. The Broome Cnty. Humane Soc'y, No. 23-CV-7777 (E.D.N.Y. filed Oct. 10, 2023); (76) Lettieri v. Quinn, No. 23-CV-7830 (E.D.N.Y. filed Oct. 16, 2023); (77) Lettieri v. T-Mobile, No. 24-CV-0028 (W.D. Wash. filed Jan. 4, 2024); (78) Lettieri v. Santander, No. 24-CV-10361 (D. Mass. filed Feb. 15, 204); (79) Lettieri v. Securus Technologies, No. 24-CV-0270 (N.D. Tex. filed Jan. 29, 2024); (80) Lettieri v. Facebook, No. 24-CV-0873 (N.D. Cal. filed Feb. 14, 2024); (81) Lettieri v. Federal Marshals, No. 24-CV-0261 (D.D.C. filed Jan. 26, 2024); (82) Lettieri v. Hugnet, No. 24-CV-0248 (D. Md. filed Jan. 24, 2024); (83) Lettieri v. TD Bank, No. 24-CV-0832 (D.N.J. filed Feb. 13, 2024); (84) Lettieri v. Gaska, No. 24-CV-0102 (N.D.N.Y. filed Jan. 22, 2024); (85) Lettieri v. City of Binghamton, No. 24-CV-0074 (N.D.N.Y. filed Jan 17, 2024); and (86) Lettieri v. Broome Cnty. Sheriffs, No. 24-CV-0156 (N.D.N.Y. filed Jan. 31, 2024).
This case was transferred to the district court for the Northern District of Ohio, where it was assigned case number 23-CV-2172 (N.D. Ohio filed Nov. 7, 2023).
This case was transferred to to the district court for the Western District of New York, where it was assigned case number 24-CV-0095 (W.D.N.Y. filed Jan. 25, 2024).
This case was transferred to the district court for the Western District of New York, where it was assigned case number 23-CV-1279 (W.D.N.Y. filed Dec. 8, 2023).
This case was transferred to the district court for the Northern District of New York, where it was assigned case number 23-CV-1547 (N.D.N.Y. filed Dec. 11, 2023).
This case was transferred to the district court for the Northern District of Ohio, where it was assigned case number 23-CV-1661 (N.D. Ohio filed Aug. 25, 2023).
This case was transferred to the district court for the Northern District of Ohio, where it was assigned case number 23-CV-2028 (N.D. Ohio filed Oct. 16, 2023).
This case was transferred to the district court for the Western District of New York, where it was assigned case number 23-CV-6682 (W.D.N.Y. filed Dec. 1, 2023).
This case was transferred to the district court for the Western District of New York, where it was assigned case number 23-CV-6704 (W.D.N.Y. filed Dec. 11, 2023).
On January 26, 2024, the undersigned issued an Order and Report-Recommendation to Senior United States District Judge Thomas J. McAvoy which, inter alia, recommended that the matter be referred to Chief Judge Brenda K. Sannes to issue a pre-filing injunction permanently enjoining Plaintiff from filing any other pro se actions in this District without leave of the Chief Judge. (Lettieri v. City of Binghamton, No. 24-CV-0074 (TJM/ML) (N.D.N.Y. filed January 17, 2024), Dkt. No. 4 at 9-13.)
Upon review of these actions, and consistent with the determinations reached by 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 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-0770 (W.D.N.Y. Sept. 11, 2023), Dkt. No. 7; (2) Lettieri v. U.S. Dep't of Justice, 23-CV-0866 (W.D.N.Y. Sept. 19, 2023), Dkt. No. 3; and (3) 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 five years before filing this action, a third party attempted to stab Plaintiff and employees of Defendant failed to pursue criminal charges. (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 December 27, 2023. (Dkt. No. 1 at 11.) Therefore, Plaintiff is barred from proceeding IFP under Section 1915.
ACCORDINGLY, it is
ORDERED that Plaintiff's IFP application (Dkt. No. 2) is DENIED; 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 respectfully
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).