Feelings v. John Doe, (Dallis)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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EARL BRISTOW FEELINGS,

Plaintiff,

REPORT AND

RECOMMENDATION

18 CV 5893 (LDH) (CLP)

- against –

POLICE OFFICER ELIAS DALLIS,

Defendant.

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POLLAK, United States Magistrate Judge:

On October 19, 2018, plaintiff Earl Bristow Feelings, proceeding pro se, filed this action

pursuant to 42 U.S.C. § 1983, against John Doe, later identified as Police Officer Ellias Dallis,1

the New York City Police Department (“NYPD”), and the City of New York, alleging that in

October 2017, he had been subjected to excessive force and suffered personal injuries during the

course of his arrest by Officer Dallis on charges of petit larceny.

In a Memorandum and Order, dated March 14, 2019, the Honorable LaShann DeArcy

Hall dismissed plaintiff’s claims against the City and the NYPD, but allowed the claims against

Officer Dallis to proceed. (Order at 3-4). At that time, the judge also granted plaintiff’s motion

for leave to proceed in forma pauperis against the officer. (Id. at 1).

1 In her Memorandum and Order, dated March 14, 2019 (“Order”), ECF No. 5, the

Honorable LaShann DeArcy Hall directed the Corporation Counsel for the City of New York to

ascertain and provide the full name of Officer John Doe. (Order at 4). The Corporation Counsel

provided Officer Dallis’ name on April 26, 2019 and a summons was issued and returned

executed by Officer Dallis on May 14, 2019. (ECF Nos. 9, 10).

On January 3, 2020, Officer Dallis filed a motion to revoke plaintiff’s in forma pauperis

status, arguing that under the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915,

plaintiff’s in forma pauperis status should be revoked because Mr. Feelings had filed three prior

lawsuits while in the custody of the New York City Department of Correction that have been

dismissed as meritless. (Def.’s Mem.2 at 4). For the reasons set forth below, this Court

respectfully recommends that defendant’s motion be granted and that plaintiff’s in forma

pauperis status be revoked.

DISCUSSION

A. The Prison Litigation Reform Act

Pursuant to 28 U.S.C. § 1915(a), indigent individuals are granted in forma pauperis

(“IFP”) status and authorized to file civil actions in federal court even when they are unable to

pay or give security for a filing fee. When Congress originally enacted this provision in 1892, it

was designed to open the federal courts even to the most impoverished individuals. In 1966,

Congress enacted the Prison Litigation Reform Act (“PLRA”), which amended § 1915 to

include, inter alia, the “three strikes rule,” which was intended to discourage prisoners from

filing meritless claims in federal court. See 28 U.S.C. § 1915(g). Section 1915(g) provides:

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.

2 Citations to “Def.’s Mem.” refer to the Memorandum in Support of Defendant’s Motion

to Revoke Plaintiff’s In Forma Pauperis Status, filed January 3, 2020, ECF No. 41.

28 U.S.C. § 1915(g). In Jones v. Bock, the Supreme Court explained that by enacting this

amendment, Congress intended to “ensur[e] that the flood of nonmeritorious claims [by prisoners

submitted to federal courts] does not submerge and effectively preclude consideration of the

allegations with merit.” 549 U.S. 199, 203, 127 S. Ct. 910, 914, 166 L. Ed. 2d 798, 806 (2007)

(noting that “nearly 10 percent of all civil cases filed in federal courts” are prisoner complaints,

and that “[m]ost of [them] have no merit; many are frivolous”); see Ortiz v. McBride, 380 F.3d

649, 658 (2d Cir. 2004) (noting that “the purpose of the PLRA . . . was plainly to curtail what

Congress perceived to be inmate abuses of the judicial process”); see also Ruggiero v. County of

Orange, 467 F.3d 170, 17 (2d Cir. 2006) (discussing the provision of the PLRA that requires

exhaustion of administrative remedies, and noting that the 1996 enactment of the PLRA was

intended to “‘invigorate [] the exhaustion prescription” for prisoners) (quoting Porter v. Nussle,

534 U.S. 516, 524 (2002)).3

The Second Circuit Court has joined at least five other circuits in finding that the PLRA’s

three strikes rule, directing the denial of IFP status pursuant to § 1915(g), is constitutional, and

does not “violate[] a prisoner’s right of access to the courts or is impermissibly overbroad.”

Polanco v. Hopkins, 510 F.3d 152, 153-54 (2d Cir. 2007) (holding that “[w]e find none of

[plaintiff’s] constitutional challenges persuasive and join the other circuits that have upheld the

constitutionality of this statute) (citing Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir. 1999);

White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998); Rivera v. Allin, 144 F.3d 719, 723-24

(11th Cir. 1998), abrogated on other grounds by Jones v. Bock, 549 U.S. at 216, 127 S. Ct. at

3 Although the aforementioned cases focus on the PLRA’s requirement that prisoners

exhaust administrative remedies prior to seeking relief from the Court, rather than application of

the three strikes provision, the Court nevertheless finds that these cases provide informative

commentary on Congress’ intent in passing the PLRA.

921, 166 L. Ed. 2d at 813; Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997)). In Abdul-

Akbar v. McKelvie, the Third Circuit explained:

As citizens, we may disagree with the congressional wisdom, but

as judges, knowing the clearly stated legislative purpose, we may

not disembowel the legislative act. . . . We are limited to that

which has been granted by Congress. What Congress gives it may

also take away. The ability to proceed I.F.P. is not a constitutional

right. Congress granted the right to proceed I.F.P. in 1892, and it

has the power to limit this statutorily created right. Here it has

taken away our ability as judges to grant I.F.P. status to a “three

strikes” prisoner, no matter how meritorious his or her subsequent

claims may be, unless the prisoner “is under imminent danger of

serious physical injury” when he or she “bring[s] a civil action.”

Congress has held trump here, and it has dealt a hand. As judges

we must play it.

239 F.3d 307, 316 (3d Cir. 2001) (en banc).

In defining the imminent danger exception, the Second Circuit agreed with the view of

other circuits that the use of the present tense in Section 1915(g) means that, for a prisoner to

successfully invoke the imminent danger exception to the three strikes rule, “the danger must

exist when the action is filed, rather than when the underlying events occurred.” Malik v.

McGinnis, 293 F.3d 559, 561-63 (2d Cir. 2002); see also Abdul–Akbar v. McKelvie, 239 F.3d at

313 (finding that “[t]he statute contemplates that the ‘imminent danger’ will exist

contemporaneously with the bringing of the action”); Medberry v. Butler, 185 F.3d 1189 (11th

Cir. 1999) (same); Baños v. O’Guin, 144 F.3d 883 (5th Cir. 1998) (same); Ashley v.

Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (same).4 In addition, when evaluating whether a

4 The Second Circuit has also held that, to qualify for the imminent danger exception, a

three-strike litigant’s complaint must “reveal a nexus between the danger the petitioner alleges

and the claims [asserted].” Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009). To

determine whether a nexus exists, the court in Pettus instructed district 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 297, 298-99 (emphasis in original).

case should be considered and counted as a strike for purposes of this provision, courts consider

the incarceration status of the plaintiff at the time the action was filed, not when the action is

dismissed. See Harris v. City of New York, 607 F.3d 18, 20 (2d Cir. 2012) (holding that it was

“appropriate” for the district court to “dismiss a prisoner-plaintiff’s complaint [even] if he has

been released from prison subsequent to the filing of his complaint”).

However, there has been disagreement as to whether a partial dismissal of only certain

claims counts as a strike; courts in this Circuit have held that the entire action must have been

dismissed for one of the stated reasons set forth in Section 1915(g) in order to qualify as a strike.

Escalera v. Samaritan Vill., 938 F.3d 380, 382 (2d Cir. 2019) (per curiam) (holding that “a

prisoner’s entire ‘action or appeal’ must be dismissed on a § 1915(g) ground to count as a strike

under the PLRA. Accordingly, mixed dismissals are not strikes under the PLRA”). As the court

in Escalera observed, “counting a partial § 1915(g) dismissal as a strike could result in the

anomalous situation where a prisoner succeeds on some claims yet still accrues a strike if others

are dismissed on § 1915(g) grounds.” Id. at 382. See also Tafari v. Hues, 539 F. Supp. 2d 694,

702 (S.D.N.Y. 2008) (noting that “[i]n the interest of reaching a balance between enabling

prisoners to bring meritorious suits and reducing the burden on the courts of frivolous suits,

strikes should be imposed only when entire actions are dismissed for one of the stated reasons

within section 1915(g)”). The court in Tafari found that even though a number of claims in one

of the plaintiff’s prior cases had been dismissed for failure to state a claim, that case did not

constitute a strike and therefore, plaintiff was still entitled to IFP status. Id. The court stated:

“Given the Second Circuit precedent concerning related PLRA provisions, we think a ruling that

plaintiffs do not incur strikes for partial dismissals for reasons within section 1915(g) is

consistent with the purpose and intent of the PLRA. Id.

Other circuit courts have agreed, holding that an action, not an individual claim, counts as

a strike. See, e.g., Brown v. Megg, 857 F.3d 287, 290-92 (5th Cir. 2017) (holding that dismissal

of “some allegations for failure to state a claim and others at the summary judgment stage for

lack of evidentiary support” did not qualify as a strike); Washington v. L.A. Cty. Sheriff’s Dep’t,

833 F.3d 1048, 1055-57 (9th Cir. 2016) (holding that (1) a dismissal under the doctrine of Heck

v. Humphrey, 512 U.S. 477 (1994), does not always constitute a strike; (2) a dismissal under the

Younger abstention doctrine (Younger v. Harris, 401 U.S. 37 (1971)) does not always constitute

a strike, and (3) dismissed mandamus petitions did not qualify as strikes); Byrd v. Shannon, 715

F.3d 117, 125-26 (3d Cir. 2013) (holding that “a strike under § 1915(g) will accrue only if the

entire action or appeal is (1) dismissed explicitly because it is ‘frivolous,’ ‘malicious,’ or ‘fails to

state a claim’ or (2) dismissed pursuant to a statutory provision or rule that is limited solely to

dismissals for such reasons”); Tolbert v. Stevenson, 635 F.3d 646, 648, 650-651 (4th Cir. 2011)

(“considering the provision’s plain language,” and noting the difference between “claim” and

“action,” the court found “action” as defined in the Federal Rules of Civil Procedure “to mean an

entire suit”); Turley v. Gaetz, 625 F.3d 1005, 1008-1009 (7th Cir. 2010) (holding that a “strike

is incurred for an action dismissed in its entirety on one or more of the three enumerated

grounds”) (emphasis in original); Thompson v. DEA, 492 F.3d 428, 432 (D.C. Cir. 2007)

(holding that “actions containing at least one claim falling within none of the three strike

categories . . . do not count as strikes.”).

The Second Circuit has also concluded that dismissal of an action may not count as a

strike for any reasons other than those specifically enumerated in § 1915(g). See Escalera v.

Samaritan Village, 938 F.3d at 381-82. Thus, if a case is dismissed for procedural reasons, such

as dismissal for illegibility, or dismissed with a grant of summary judgment, or dismissed for

lack of subject matter jurisdiction, such dismissals do not count as strikes. Other reasons that do

not qualify as strikes include dismissal of habeas petitions or dismissal for failure to exhaust

administrative remedies. See Jones v. Smith, 720 F.3d 142, 147-148 (2d Cir. 2013) (noting that

“dismissals of habeas petitions challenging the prisoner's conviction or the duration of his

confinement should not be considered strikes for purposes of the PLRA."5); Snider v. Melindez,

199 F.3d 108, 111 (2d Cir. 1999) (stating that “[Section] 1915(g)'s mandate . . . was intended to

apply to nonmeritorious suits dismissed with prejudice” because of “a determination that [a

nonmeritorious suit] ultimately cannot succeed” while “[f]ailure to exhaust administrative

remedies is often a temporary, curable, procedural flaw”).

B. Plaintiff’s Three Strikes

In moving for an Order revoking plaintiff’s IFP status, pursuant to Section 1915(g),

defendant has submitted the Declaration of Stephanie Michelle Vilella Alonso, attaching copies

of the Complaints and Orders of dismissal in three prior lawsuits brought by Mr. Feelings while

he was in the custody of the New York City Department of Correction. (Vilella Decl.6, Exs. D,

E, F).

The first case defendant cites as a strike was a lawsuit Mr. Feelings brought in the

Southern District of New York, alleging violations of Section 1983 of the Civil Rights Act of

1964. In that suit, Mr. Feelings claimed that while in the custody of the Manhattan Detention

Center, he was fed contaminated food, which caused him to become ill and suffer various

5 The court qualified its holding by “express[ing] no opinion, however, about whether

habeas petitions that challenge a prisoner's conditions of confinement . . . or those challenging

civil confinement would constitute strikes.” Jones v. Smith, 720 F.3d at 147.

6 Citations to “Villela Decl.” refer to the Declaration of Stephanie Michelle Vilella

Alonso in Support of Defendants’ Motion to Revoke Plaintiff’s In Forma Pauperis Status, dated

January 3, 2020, ECF No. 40. Exhibits D, E, and F are attached to the Declaration at ECF Nos.

40-4, 40-5, and 40-6, respectively.

damages, including emotional distress. See Earl B. Feelings v. City of New York, et al., 13 CV

6019 (LAP) (S.D.N.Y. 2013). According to the Order of the Honorable Loretta Preska,

plaintiff’s action was dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failing to state a

claim on which relief may be granted. (See 9/30/2013 Order7at 3, 4, attached as Ex. D to Vilella

Decl.). The court found that Mr. Feelings had failed to allege that the prison officials were

deliberately indifferent, noting that one claim of food poisoning does not state a constitutional

violation. (Id. at 2-3). The court also dismissed the claims brought against the Department of

Corrections (“DOC”), noting that the DOC is not a suable entity, and the claim against then-

New York City Mayor Michael Bloomberg because it failed to allege any personal involvement

on his part. (Id. at 4).

The second action cited by defendant was the case of Earl B. Feelings v. Warden Rose

Argo, et al., 14 CV 163 (LAP) (S.D.N.Y. 2014). In this Section 1983 action, Mr. Feelings

alleged that prison officials had delayed his outgoing legal mail for a period of 25 days.

(6/10/2014 Order8 at 4, attached as Ex. E to Vilella Decl.) On March 11, 2014, the court had

issued an order that afforded Mr. Feelings an opportunity to amend his complaint, because he

had failed to allege that he had suffered actual injury as a result of the delay, and he had failed to

allege personal involvement on the part of the Warden. (Id. at 1). Although Mr. Feelings filed

an amended complaint, the court found that he had failed to cure the deficiencies, and thus

dismissed the amended complaint, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), stating: “This

7 Citations to “9/30/2013 Order” refer to Judge Preska’s Order of Dismissal, filed

September 30, 2013, ECF No. 5.

8 Citations “6/10/2014 Order” refer to Judge Preska’s Order of Dismissal, filed June 10,

2014, ECF No. 9.

action therefore must be dismissed for failure to state a claim upon which relief can be granted.”

(Id. at 4).

The third action which defendant cites as a strike was a Section 1983 action commenced

in this Court in which Mr. Feelings alleged claims of false arrest, as well as various state law

claims, against Police Officer Carl Caputo and Detective Daniel Fahey. Earl B. Feelings v. P.O.

Carl Caputo, et al., 13 CV 6485 (CBA) (CLP) (E.D.N.Y. 2013). At the time he commenced the

action, Mr. Feelings was incarcerated at the Anna M. Cross Center in East Elmhurst, New York,

on Rikers Island. On August 21, 2015, the Honorable Carol B. Amon adopted this Court’s

Report and Recommendation, recommending dismissal of Mr. Feelings’ claims on the grounds

that the claims were not only untimely, but Mr. Feelings had failed to plead sufficient facts to

support any of his claims. (1/06/2016 Order9 at 1, attached to Villela Decl. as Ex. F). Although

the court gave Mr. Feelings a number of opportunities to file an amended pleading, he never did

so, and the court ultimately dismissed the action as untimely filed and for failure to allege

sufficient facts to support his claims. (Id. at 1, 2).

Here, the Court has reviewed the underlying complaints, as well as the written Orders

dismissing each of three prior cases, and finds that all were dismissed because the allegations in

each one failed to state a plausible claim.10 Thus, under Section 1915(g), plaintiff should not be

allowed to proceed and his IFP status should be revoked.

9 Citations to “1/06/2016 Order” refer to Judge Amon’s Memorandum and Order granting

Motion to Dismiss, filed January 6, 2016, ECF No. 57.

10 In Harris v. City of New York, 607 F.3d 18, 20 (2d Cir. 2010), the Second Circuit held

that, in determining whether an inmate has had three or more prior lawsuits dismissed as

frivolous, malicious or because the allegations fail to state a plausible claim, courts “may rely on

docket sheet entries if they indicate with sufficient clarity the grounds for dismissal of prior

suits.” However, in the instant case, this Court examined not only the docket sheets, but also the

underlying orders dismissing each case to determine that they qualify as strikes.

In opposing defendant’s motion, plaintiff claims that these three of his prior lawsuits

were not dismissed for the reasons enumerated in 1915(g). (See Pl.’s Resp.11). Instead, he

argues that “the assumed ‘3’ strikes the defendant is presenting before this case [were] dismissed

on the ground of ‘DEFAULT JUDGEMENT’ [sic] failure to prosecute the claims,” (Pl. Resp. ¶

14). However, the Orders dismissing the cases clearly demonstrate that they were dismissed for

failure to state a claim. Plaintiff also cites to a successful suit that he filed after these three

enumerated lawsuits, which was not dismissed for failure to state a claim.12 (Id. ¶ 6 (citing

Feelings v. Warden Stukes, et al., 15 CV 1889 (JPO) (S.D.N.Y. March 10, 2015))). A review of

the docket sheet shows that defendants never challenged plaintiff’s IFP status in that matter.

Feelings v. Warden Stukes, et al., 15 CV 1889 (JPO) (S.D.N.Y. March 10, 2015). 13

The prior orders granting IFP status to Mr. Feelings made no mention of earlier cases that

had been dismissed for failure to state a claim, nor is there any compilation of previous strikes

acquired by plaintiff that a court would be able to look to in order to determine whether IFP

status should be denied under Section 1951(g). This Court has not been the only one to question

11 Citations to “Pl.’s Resp.” refer to plaintiff’s Response to Defendant Request For Stay

Application – Motion, filed on February 24, 2020, ECF No. 45.

12 Plaintiff also refers to the case of Parker v. City of New York, No 15 CV 6733, 2018

WL 6338775 (E.D.N.Y. Dec. 4, 2018), in which he claims he was a prevailing party. (Pl. Resp.

¶ 6). However, Parker is a class action lawsuit brought by Roy Parker, through counsel, on

behalf of himself and others similarly situated who alleged that the New York City Department

of Corrections placed pretrial detainees in solitary confinement or punitive segregation without

providing them with due process and for no legitimate purpose. (Parker v. City of New York,

No. 15 CV 6733, 2018 WL 6338775, at *1). While Mr. Feelings may have recovered as one of

the members of the class, he was not a named plaintiff in the case and did not commence this

action.

13 In Feelings v. Warden Stukes, et al., 15 CV 1889, plaintiff brought a Section 1983

prisoner civil rights claim, alleging that he had been incarcerated beyond his imposed penalty

time as a form of discipline. Since the claims were addressed and Mr. Feelings received

compensation as part of the class settlement in Parker v. City of New York, No 15 CV 6733,

2018 WL 6338775, his individual action was dismissed. (See Complaint and 7/20/2020 Order in

Feelings v. Warden Stukes, et al., 15 CV 1889).

why a plaintiff’s IFP status was granted in the first place when there was a history of three or

more strikes. In Sloan v. Lesza, the district court had granted IFP status to the plaintiff, unaware

of plaintiff-appellee’s history of court action. 181 F.3d 857, 858 (7th Cir. 1999). The Seventh

Circuit attributed the district court’s error to “the difficulty of administering [§ 1915(g)] when

dockets teem with frivolous suits.” Id. at 858 (noting that “[t]he federal judiciary needs (but

lacks) a central database of litigants to whom § 1915 (g) applies”). As the Second Circuit has

observed, however, such a database would be difficult to maintain, since courts do not typically

issue strikes on the record at the time the action is dismissed. See Deleon v. Doe, 361 F.3d 93,

95 (2d Cir. 2004). In Snider v. Melindez, the court had questioned “whether the entry of a strike

[under § 1915(g)] is properly considered at the time an action is dismissed.” The court held that

issuing a strike “has no practical consequences until a defendant in a prisoner’s lawsuit raises the

contention that the prisoner’s suit or appeal may not be maintained in forma pauperis pursuant to

28 U.S.C. § 1915 because the prisoner has accumulated three strikes.” Deleon v. Doe, 361 F.3d

at 95 (quoting Snider v. Melindez, 199 F.3d 108, 115 (2d Cir. 1999)).

Mr. Feelings also argues that he should not be subject to the three strikes rule because he

falls within the imminent danger of serious physical injury exception. (Pl. Resp. ¶ 15). Plaintiff

alleges that he incurred “head contusions[,] mass swelling upon his forehead, back, leg & general

excruciating pain from this incident which could have resulted in a tragic fatality.” (Id. ¶ 16). In

arguing that plaintiff is not entitled to the exception for imminent danger or serious physical

injury under § 1915(g), defendant points to the decision of the Second Circuit in Malik v.

McGinnis, in which the court stated: “By using the term ‘imminent,’ Congress indicated that it

wanted to include a safety valve for the ‘three strikes’ rule to prevent impending harms, not those

harms that had already occurred.” (Def.’s Mem. at 5 (quoting Malik v. McGinnis, 293 F.3d 559,

563 (2d Cir. 2002) (internal quotation omitted)); see also Anderson v. City of New Britain, No.

17 CV 0331, 2018 U.S. Dist. LEXIS 13727, at *3 (D. Conn. Aug. 7, 2018) (holding that the

“imminent danger” exception did not apply to plaintiff’s allegations of “false arrest, malicious

prosecution, and illegal search and seizure” because the defendant “d[id] not allege that he faced

imminent danger of harm at the time he filed [the] action”); Dove v. City of Binghamton, No. 14

CV 0627, 2014 U.S. Dist. LEXIS 147996, at *8 (N.D.N.Y. Sept. 8, 2014) (finding that the

plaintiff could not establish the relationship between imminent physical harm and his allegations

because the claims “stem from his arrest and prosecution that occurred several years ago”).

For these same reasons, plaintiff’s claims in this case do not fall within the “imminent

danger” exception because plaintiff alleges that Police Officer Dallis used excessive force during

plaintiff’s arrest on October 15, 2017 (Compl.14 ¶¶ 3-7), and plaintiff has made no showing that

he currently faces a threat of imminent danger from this officer. As such, plaintiff has failed to

establish the nexus discussed in Pettus v. Morgenthau – namely, that the imminent danger be

“fairly traceable to unlawful conduct asserted in the complaint and (2) whether a favorable

judicial outcome would redress that injury.” 554 F.3d at 298-99 (emphasis in original). Here,

plaintiff cannot make that showing because the incident that caused danger to the plaintiff has

long since concluded.15

14 Citations to “Compl.” refer to plaintiff’s Complaint, filed October 19, 2018, ECF No.

1.

15 Although plaintiff has cited a number of cases which he argues support his position

that he qualifies for the imminent danger exception, these cases in fact confirm that the danger of

serious imminent harm must exist at the time the complaint is filed, and not when the underlying

incident occurred. (See Pl. Resp. ¶¶ 4, 5 (citing, inter alia, Martin v. Shelton, 319 F.3d 1048,

1050 (8th Cir. 2003) (noting “that the requisite imminent danger of serious physical injury must

exist at the time the complaint or the appeal is filed, not when the alleged wrongdoing

occurred”); Heimermann v. Litscher, 337 F.3d 781 (7th Cir. 2003) (affirming that any danger

experienced years ago does not warrant invocation of the imminent danger exception in the

present); Malik v. McGinnis, 293 F.3d 559 (discussed supra at 4, 11); Abdul-Akbar v.

Having reviewed the underlying Orders in the three prior cases cited by defendant, it is

clear that plaintiff has filed three prior cases while incarcerated that have been dismissed for

failure to state a claim under which relief could be granted, bringing plaintiff within the three

strikes rule of the PLRA. Since the statutory language of Section 1915(g) is mandatory – “In no

event shall an inmate bring a civil action or proceeding” under this provision – the court is left

with no discretion to grant IFP status unless plaintiff’s claims qualify under the imminent danger

exception. Here, it is clear that plaintiff’s claim of imminent danger relates to the harms he

suffered in October 2017, and not any imminent danger that he is currently facing. Accordingly,

it is respectfully recommended that plaintiff’s IFP status be revoked pursuant to Section 1915(g).

It is further respectfully recommended that unless Mr. Feelings pays the appropriate

filing fee within 30 days of the court’s decision, that his case be dismissed. In Polanco v.

Hopkins, the Second Circuit affirmed the revocation of plaintiff’s IFP status under the three

strikes rule, and the conditional grant of a motion to dismiss, contingent on the payment of the

appropriate filing fee. Polanco v. Hopkins, 510 F.3d 152 (2d Cir. 2007) (per curiam) (affirming

the district court’s order of dismissal of plaintiff’s case in Polanco v. Hopkins, No. 03 CV 6661,

2007 U.S. Dist. LEXIS 20956 (W.D.N.Y. Mar. 19, 2007) unless plaintiff paid the appropriate

filing fee within 30 days of the docketing of the district court’s decision). See also Pettus v.

Morgenthau, No. 05 CV 6598Fe, 2007 U.S. Dist. LEXIS 98085, *19 (W.D.N.Y. Jan. 12, 2007)

(directing plaintiff to pay the filing fee or face dismissal; plaintiff “may have until February 18,

McKelvie, 239 F.3d at 310 (overruling its previous holding that imminent danger “is measured

at the time of the alleged incident, not at the time the complaint is filed” and concluding that the

question is whether imminent danger exists at the time of filing).

2007 [37 days from the order] to pay the filing fee of $ 250.00 or the action will be dismissed”);

Dove v. City of Binghamton, 2014 U.S. Dist. LEXIS 147298, *6 (ordering plaintiff “to pay the

full filing fee of $400 no later than thirty (30) days from the date of this Decision and Order”).

Accordingly, it is respectfully recommended that unless Mr. Feelings pays the filing fees,

his case should be dismissed.

Any objections to this Report and Recommendation must be filed with the Clerk of the

Court within fourteen (14) days. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also

Fed. R. Civ. P. 6(a), (e) (providing the method for computing time). Failure to file objections

within the specified time waives the right to appeal the District Court’s order. See, e.g., Caidor

v. Onondaga Cty., 517 F.3d 601, 604 (2d Cir. 2008) (explaining that “failure to object timely to a

. . . report [and recommendation] operates as a waiver of any further judicial review of the

magistrate [judge’s] decision”).

The Clerk is directed to send copies of this Order to the parties either electronically

through the Electronic Case Filing (ECF) system or by mail.

SO ORDERED.

Dated: Brooklyn, New York

August 14, 2020

/s/ Cheryl L. Pollak

Cheryl L. Pollak

Chief United States Magistrate Judge

Eastern District of New York