# Boyde v. Fahey

> District Court, N.D. New York · December 21, 2021

URL: https://www.frixlaw.com/law-library/cases/10314373

## Case

- **Court:** District Court, N.D. New York
- **Decided:** December 21, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________

JOHNNY WILLIAM BOYDE,

Plaintiff,
5:21-CV-01277
v. (TJM/TWD)

JOSEPH E. FAHEY,

Defendant.
_____________________________________________

APPEARANCES:

Johnny William Boyde
Plaintiff, pro se
07001284
Onondaga County Correctional Facility
6660 E. Seneca Turnpike
Jamesville, NY 13078

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

ORDER AND REPORT-RECOMMENDATION

The Clerk has sent to the Court for review a pro se civil rights complaint filed by Johnny
William Boyde (“Plaintiff”) pursuant to 42 U.S.C. §1983 (“Section 1983”) against Joseph E.
Fahey, a retired Onondaga County Court Judge. (Dkt. No. 1.) Plaintiff, who is presently
incarcerated, has not paid the filing fee for this action and seeks leave to proceed in forma
pauperis (“IFP Application”). (Dkt. No. 2.)
I. IFP APPLICATION
A court may grant in forma pauperis status if a party “is unable to pay” the standard fee
for commencing an action. 28 U.S.C. § 1915(a)(1). Upon review, Plaintiff has submitted a
completed and signed IFP Application, which demonstrates economic need. (Dkt. No. 2.)
Plaintiff has also filed the inmate authorization form required in this District. (Dkt. No. 3.)
Accordingly, Plaintiff’s IFP Application is granted.1
II. SUFFICIENCY OF THE COMPLAINT
Under Section 1915(e), the district court must dismiss a complaint filed in forma

pauperis if it determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B). Similarly, under Section 1915A, a district court
must review any “complaint in a civil action in which a prisoner2 seeks redress from a
governmental entity or officer or employee of a governmental entity” and must “identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . .
is frivolous, malicious, or fails to state a claim upon which relief may be granted; or . . . seeks
monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A.
To avoid dismissal, a complaint must plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

1 Section 1915 permits “an indigent litigant to commence an action in a federal court without
prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, No. 09-CV-
1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent, incarcerated
individual need not prepay the filing fee at the time of filing, he must subsequently pay the fee,
to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Id.
(citing 28 U.S.C. § 1915(b) and Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).
The current filing fee for a civil complaint is $350.00. Additionally, although his IFP
Application has been granted, Plaintiff will still be required to pay additional fees that he may
incur in this action, including copying and/or witness fees.

2 As used in this Section, the term “prisoner” means “any person incarcerated or detained in any
facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations
of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary
program.” 28 U.S.C. § 1915A(c).
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure “does not require
detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me
accusation.” Id. Thus, a pleading that contains only allegations which “are so vague as to fail to

give the defendants adequate notice of the claims against them” is subject to dismissal. Sheehy v.
Brown, 335 F. App’x 102, 104 (2d Cir. 2009).
In determining whether a complaint states a claim upon which relief may be granted, “the
court must accept the material facts alleged in the complaint as true and construe all reasonable
inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994)
(citation omitted). “[T]he tenet that a court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
A pro se litigant’s pleadings are held to a less strict standard than attorney drafted
pleadings. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) (“Even in the formal

litigation context, pro se litigants are held to a lesser pleading standard than other parties.”).
However, this “does not exempt a [pro se litigant] from compliance with relevant rules of
procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).
Rule 8 of the Federal Rules provides that a pleading which sets forth a claim for relief
shall contain, inter alia, “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). The purpose of Rule 8 “is to give fair notice of the
claim being asserted so as to permit the adverse party the opportunity to file a responsive answer,
prepare an adequate defense and determine whether the doctrine of res judicata is applicable.”
Hudson v. Artuz, No. 95 Civ. 4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting
Powell v. Marine Midland Bank, No. 95-CV-0063 (TJM), 162 F.R.D. 15, 16 (N.D.N.Y. June 23,
1995) (other citations omitted)). Although “[n]o technical form is required,” the Federal Rules
make clear that each allegation contained in the pleading “must be simple, concise, and direct.”
Fed. R. Civ. P. 8(d). Further, Rule 10 of the Federal Rules provides in pertinent part that:

A party must state its claims or defenses in numbered paragraphs,
each limited as far as practicable to a single set of circumstances.
A later pleading may refer by number to a paragraph in an earlier
pleading. If doing so would promote clarity, each claim founded
on a separate transaction or occurrence – and each defense other
than a denial – must be stated in a separate count or defense.

Fed. R. Civ. P. 10(b). This serves the purpose of “provid[ing] an easy mode of identification for
referring to a particular paragraph in a prior pleading[.]” Flores v. Graphtex, 189 F.R.D. 54, 54
(N.D.N.Y. 1999) (quotation marks and citations omitted).
Although extreme caution should be exercised in ordering sua sponte dismissal of a pro
se complaint before the adverse party has been served and the parties have had an opportunity to
respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), the court still has a responsibility
to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g.,
Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has
the power to dismiss a complaint sua sponte if the complaint is frivolous). “An action is
frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are
the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal
theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations and
internal quotation marks omitted).
Moreover, a court should not dismiss a pro se complaint “without giving leave to amend
at least once when a liberal reading of the complaint gives any indication that a valid claim might
be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and
internal quotation marks omitted). However, an opportunity to amend is not required where “the
problem with [the plaintiff’s] causes of action is substantive” such that “better pleading will not
cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
Here, because Plaintiff is proceeding pro se, the undersigned construes his pleadings “to

raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 475 (2d Cir. 2006) (per curiam) (internal quotation marks omitted); see also Sealed Plaintiff
v. Sealed Defendant, 537 F.3d 185 191 (2d Cir. 2008). Nevertheless, the Court recommends
dismissal because the complaint fails to state a plausible claim.
Although Plaintiff has utilized the pro forma complaint for a pro se civil rights action
under Section 1983, he sets forth no facts in the body of the complaint and instead instructs the
Court to “See Attached Exhibit A Memorandum and/or Order.” Id. at 4.3 In turn, Exhibit A is a
copy of an “Opinion” from an “Appeal from a judgment of the Onondaga County Court (Joseph
E. Fahey, J.), rendered February 15, 2011.” Id. at 5-7.4
As to the Statement of Claims, Plaintiff lists: (1) Fourth, Fourteenth Constitutional

Amendments; (2) Illegal Sentence, Reversal/Vacate, Whatever the Court Deem Just Proper; (2)
False Arrest, Illegal Imprisonment, Cruel and Unusual Punishment, Whatever the Court Deem
Just/Proper. Id. at 8. As relief, Plaintiff seeks $300,000. Id.
In short, Plaintiff’s complaint fails to provide sufficient information for the Court to
review or for the defendant to have notice of the claims asserted against him. For example,
Plaintiff has not included any dates, locations, or explained how the defendant was involved in

3 Page references to documents identified by docket number are to the page numbers assigned
by the CM/ECF docketing system maintained by the Clerk’s Office.

4 It appears Exhibit A is a copy of People v. Boyde, 122 A.D.3d 1302, 995 N.Y.S.2d 428 (4th
Dep’t 2014). (Dkt. No. 1 at 6-7.)
any wrongdoing. Also problematic is that the complaint is brought against a retired Onondaga
County Court Judge. Id. at 2. While Plaintiff’s claims are not clear to the Court, the “Opinion”
attached as Exhibit A to the complaint states, in part:
Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered February 15, 2011. The judgment convicted
defendant, upon his plea of guilty, of sexual abuse in the first
degree, sexual abuse in the second degree and endangering the
welfare of a child.

It is hereby order that the judgment so appealed from is
unanimously reversed as a matter of discretion in the interest of
justice and on the law, the plea is vacated, and the matter is
remitted to Onondaga County Court for further proceedings on the
indictment.

(Dkt. No. 1 at 6.) Thus, it seems logical that Plaintiff is complaining of wrongdoing in
connection with that criminal proceeding. However, judges are immune from suit for damages
for any actions taken within the scope of their judicial responsibilities. Mireles v. Waco, 502
U.S. 9, 11 (1991). This is true however erroneous an act may have been, and however injurious
its consequences were to the plaintiff. Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994); see also
Stump v. Sparkman, 435 U.S. 349, 357 (1978) (“A judge will not be deprived of immunity
because the action he took was in error, was done maliciously, or was in excess of his authority;
rather, he will be subject to liability only when he has acted in the clear absence of all
jurisdiction.”). This immunity applies to state court judges who are sued in federal court
pursuant to Section 1983. Pizzolato v. Baer, 551 F. Supp. 355, 356 (S.D.N.Y. 1982), aff’d sub
nom. Pizzolato v. City of New York, 742 F.2d 1430 (2d Cir. 1983).
Generally, “acts arising out of, or related to, individual cases before the judge are
considered judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). The only two
circumstances in which judicial immunity does not apply is when he or she acts “outside” his or
her judicial capacity and when the judge takes action that, although judicial in nature, is taken “in
absence of jurisdiction.” Mireles, 502 U.S. at 11-12.
Again, while not entirely clear, to the extent Plaintiff complains of any wrongdoing
related to a criminal proceeding in Onondaga County Court, Judge Fahey would be entitled to

absolute judicial immunity. Moreover, the statute of limitations for claims brought pursuant to
Section 1983 is three years; thus, any claims arising out of events that occurred in Onondaga
County Court in 2011 are likely time-barred.
Considering the foregoing, the Court recommends dismissing the complaint pursuant to
Section 1915(e) and Section 1915A. In this case, it is not clear whether better pleading would
permit Plaintiff to cure the deficiencies identified above. Nevertheless, out of deference to
Plaintiff’s pro se status, the Court also recommends that Plaintiff be granted leave to file an
amended complaint.5
ACCORDINGLY, it is hereby
ORDERED that Plaintiff’s IFP Application (Dkt. No. 2) is GRANTED solely for

purposes of initial review; and it is further

5 Specifically, any amended complaint must comply with Rules 8 and 10 of the Federal Rules.
Any such amended complaint must clearly set forth facts that give rise to the claims, including
the dates, times, and places of the alleged underlying acts, and each individual who committed
each alleged wrongful act. In addition, the revised pleading should allege facts demonstrating
the specific involvement of any of the named defendants in the constitutional deprivations
alleged in sufficient detail to establish that they were tangibly connected to those deprivations.
See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Any such amended complaint will
replace the existing complaint and must be a wholly integrated and complete pleading that does
not rely upon or incorporate by reference any pleading or document previously filed with the
Court. See Shields v. City Trust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well
established that an amended complaint ordinarily supersedes the original and renders it of no
legal effect.”).
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be DISMISSED WITH
LEAVE TO AMEND pursuant to 28 U.S.C. § 1915; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-
Recommendation, along with copies of the unpublished decisions cited herein in accordance
with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing
Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1)
(Supp. 2013); Fed. R. Civ. P. 72, 6(a).

Dated: December 21, 2021 —_~
Syracuse, New York
Theérése Wiley Dancks
United States Magistrate Judge

® If you are proceeding pro se and are served with this Order and Report-Recommendation by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date the Order and Report-Recommendation was mailed to you to serve
and file objections. Fed. R. Civ. P. 6(d). Ifthe last day of that prescribed period falls on a
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).

1998 WL 832708 By Judge Rakoff's Order dated April 14, 1998, this case was
referred to me for general pretrial purposes and for a Report
Only the Westlaw citation is currently available.
and Recommendation on any dispositive motion. Presently
United States District Court, S.D. New York.
pending is defendants' renewed motion to dismiss. Plaintiff
Theodore HUDSON, Plaintiff, filed a reply on July 6, 1998. For the reasons discussed
v. below, plaintiff's complaint is dismissed without prejudice,
Christopher ARTUZ, Warden Philip and plaintiff is granted leave to replead within thirty (30) days
of the date of the entry of this order.
Coombe, Commissioner Sergeant
Ambrosino Doctor Manion Defendants.
No. 95 CIV. 4768(JSR). FACTS
|
Nov. 30, 1998. Plaintiff alleges that he was assaulted by four inmates in the
Green Haven Correctional Facility mess hall on March 14,
Attorneys and Law Firms 1995. (Complaint at 4.) He alleges that he was struck with
a pipe and a fork while in the “pop room” between 6:00
Mr. Theodore Hudson, Great Meadow Correctional Facility,
p.m. and 6:30 p.m. (Complaint at 4–5.) Plaintiff contends
Comstock.
that the attack left him with 11 stitches in his head, chronic
Alfred A. Delicata, Esq., Assistant Attorney General, New headaches, nightmares, and pain in his arm, shoulder, and
York. back. (Id.) Plaintiff also states that Sergeant Ambrosino
“failed to secure [the] area and separate” him from his
attackers. (Reply at 5.) Plaintiff's claim against Warden Artuz
is that he “fail [sic] to qualify as warden.” (Complaint at
MEMORANDUM AND ORDER
4.) Plaintiff names Commissioner Coombes as a defendant,
BUCHWALD, Magistrate J. alleging Coombes “fail [sic] to appoint a qualified warden
over security.” (Amended Complaint at 5.) Plaintiff further
*1 Plaintiff Theodore Hudson filed this pro se action alleges that Dr. Manion refused to give him pain medication.
pursuant to 42 U.S.C. § 1983 on April 26, 1995. Plaintiff's (Complaint at 5.) Plaintiff seeks to “prevent violent crimes”
complaint alleges defendants violated his constitutional rights and demands $6,000,000 in damages. (Amended Complaint
while he was an inmate at Green Haven Correctional at 5.)
Facility.1 Plaintiff's complaint was dismissed sua sponte by
Judge Thomas P. Griesa on June 26, 1995 pursuant to 28 Defendants moved to dismiss the complaint, arguing that: (1)
U.S.C. § 1915(d). On September 26, 1995, the Second Circuit the Eleventh Amendment bars suit against state defendants
Court of Appeals vacated the judgment and remanded the case for money damages; (2) the plaintiff's allegations fail to state
to the district court for further proceedings. a claim for a constitutional violation; (3) the defendants are
qualifiedly immune from damages; and (4) plaintiff must
1 Plaintiff is presently incarcerated at Sullivan exhaust his administrative remedies before bringing this suit.
Correctional Facility.
The case was reassigned to Judge Barbara S. Jones on
DISCUSSION
January 31, 1996. Defendants moved to dismiss the complaint
pursuant to Fed.R.Civ.P. 12(c) on November 25, 1996. I find that plaintiff's complaint runs afoul of Rules 8 and
Thereafter, the case was reassigned to Judge Jed S. Rakoff 10 of the Federal Rules of Civil Procedure and dismiss the
on February 26, 1997. On February 26, 1998, Judge Rakoff complaint without prejudice and with leave to amend. Federal
granted defendants' motion to dismiss, but vacated the Rule 8 requires that a complaint contain “a short and plain
judgment on April 10, 1998 in response to plaintiff's motion statement of the claim showing that the pleader is entitled to
for reconsideration in which plaintiff claimed that he never relief.” Fed.R.Civ.P. 8(a)(2). The purpose of this Rule “is to
received defendants' motion to dismiss.
prepare an adequate defense.” Powell v. Marine Midland cases in which the court dismisses a pro se complaint for
Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (quoting Brown v. failure to comply with Rule 8, it should give the plaintiff leave
Califano, 75 F.R.D. 497, 498 (D.D.C.1977)); see Salahuddin to amend when the complaint states a claim that is on its
v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988) (stating that the face nonfrivolous. Simmons v. Abruzzo, 49 F.3d 83, 87 (2d
“principal function of pleadings under the Federal Rules is to Cir.1995).
give the adverse party fair notice of the claim asserted so as
to enable him to answer and prepare for trial”). In determining whether a nonfrivolous claim is stated, the
complaint's allegations are taken as true, and the “complaint
*2 Rule 10 of the Federal Rules of Civil Procedure requires, should not be dismissed for failure to state a claim unless
inter alia, that the allegations in a plaintiff's complaint be it appears beyond doubt that the plaintiff can prove no set
made in numbered paragraphs, each of which should recite, of facts in support of his claim which would entitle him to
as far as practicable, only a single set of circumstances. relief.” Conley v.. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99,
Moore's Federal Practice, Vol. 2A, ¶ 10.03 (1996). Rule 2 L.Ed.2d 80 (1957). The complaint of a pro se litigant is to
10 also requires that each claim upon which plaintiff seeks be liberally construed in his favor when determining whether
relief be founded upon a separate transaction or occurrence. he has stated a meritorious claim. See Haines v. Kerner, 404
Id.2 The purpose of Rule 10 is to “provide an easy mode U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Even if it
of identification for referring to a particular paragraph in a is difficult to determine the actual substance of the plaintiff's
prior pleading.” Sandler v. Capanna, 92 Civ. 4838, 1992 WL complaint, outright dismissal without leave to amend the
392597, *3 (E.D.Pa. Dec.17, 1992) (citing 5 C. Wright & complaint is generally disfavored as an abuse of discretion.
A. Miller, Federal Practice and Procedure, § 1323 at 735 See Salahuddin, 861 F.2d at 42–42; see also Doe v. City of
(1990)). New York, No. 97 Civ. 420, 1997 WL 124214, at *2 (E.D.N.Y.
Mar.12, 1997).
2 Rule 10 states:
Here, plaintiff's pro se complaint fails to satisfy the
(b) Paragraphs; Separate Statements. All
requirements of Federal Rules 8 and 10. The complaint is
averments of claim or defense shall be made in
often illegible and largely incomprehensible, scattering what
numbered paragraphs, the contents of each of
appear to be allegations specific to plaintiff within a forest
which shall be limited as far as practicable to a
of headnotes copied from prior opinions. Defendants have
statement of a single set of circumstances; and
answered with a boilerplate brief, which is perhaps all a
a paragraph may be referred to by number in all
defendant can do when faced with such a complaint. The
succeeding pleadings. Each claim founded upon
Court is left with an insurmountable burden in attempting to
a separate transaction or occurrence and each
make a reasoned ruling on such muddled pleadings.
defense other than denials shall be stated in a
separate count or defense whenever a separation
*3 Although plaintiff's complaint is substantially
facilitates the clear presentation of the matters set
incomprehensible, it appears to plead at least some claims
forth.
that cannot be termed frivolous on their face. For example,
A complaint that fails to comply with these pleading rules plaintiff clearly alleges that inmates assaulted him and that
“presents far too heavy a burden in terms of defendants' Dr. Manion refused to provide him medical attention. He also
duty to shape a comprehensive defense and provides no appears to assert that Sergeant Ambrosino failed to protect
meaningful basis for the Court to assess the sufficiency of” him from the attack or take steps to prevent future attacks.
a plaintiff's claims. Gonzales v. Wing, 167 F.R.D. 352, 355 (Plaintiff's Reply at 5). It is well established that an inmate's
(N.D.N.Y.1996). It may therefore be dismissed by the court. constitutional rights are violated when prison officials act
Id.; see also Salahuddin v. Cuomo, 861 F.2d at 42 (“When with deliberate indifference to his safety or with intent to
a complaint does not comply with the requirement that it cause him harm. Hendricks v. Coughlin, 942 F.2d 109 (2d
be short and plain, the court has the power to, on its own Cir.1991). It is similarly well established that an inmate's
initiative, ... dismiss the complaint”). Dismissal, however, is constitutional rights are violated when a prison doctor denies
“usually reserved for those cases in which the complaint is his request for medical care with deliberate indifference to
so confused, ambiguous, vague, or otherwise unintelligible the inmate's serious medical needs. Estelle v. Gamble, 429
Coughlin, 37 F.3d 63 (2d Cir.1994), cert. denied, 513 U.S. Plaintiff's complaint shall contain the facts specific to the
incidents plaintiff alleges occurred, and not any facts relating
1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). Although
to any case that has been decided previously by a court of law.
plaintiff provides few facts to support his allegations, I
Plaintiff's complaint shall also contain a clear statement of the
disagree with defendants' assertion that outright dismissal is
relief he seeks in addition to monetary damages.
appropriate because it “appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.” Defendant's Memorandum at 5 (quoting
Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d CONCLUSION
80 (1957)).
For the reasons set forth above, plaintiff's complaint is
Because plaintiff's complaint does not comply with Rules 8 dismissed without prejudice, and plaintiff is granted leave to
and 10, it is hereby dismissed without prejudice, and plaintiff replead within thirty (30) days of the date of the entry of this
is granted leave to replead within thirty (30) days of the date Order.
of the entry of this Order. In drafting his second amended
complaint, plaintiff is directed to number each paragraph and IT IS SO ORDERED.
order the paragraphs chronologically, so that each incident in
which he alleges a constitutional violation is described in the
All Citations
order that it occurred. Plaintiff is also directed to specifically
describe the actions of each defendant that caused plaintiff Not Reported in F.Supp.2d, 1998 WL 832708
End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works.
2010 WL 5185047 York State Department of Correctional Services, commenced
this action on or about January 12, 2009 by submitting his
Only the Westlaw citation is currently available.
complaint to the Court's Pro Se office. Plaintiff alleges, in
United States District Court,
pertinent part, that he has “a non-healing ulcer that is gane
S.D. New York.
green [sic ]” and that defendant Bernstein “did not want
David J. CASH, Plaintiff, to treat the ulcer right” (Complaint, dated March 3, 3009
v. (Docket Item 2) (“Compl.”), at 3).
BERNSTEIN, MD, Defendant.
The action was originally commenced against two defendants
No. 09 Civ.1922(BSJ)(HBP). —Dr. Bernstein and Dr. Finkelstein. The action was dismissed
| as to Dr. Finkelstein because the complaint contained no
Oct. 26, 2010. allegations whatsoever concerning Dr. Finkelstein (Order
dated February 18, 2010 (Docket Item 9)).
REPORT AND RECOMMENDATION1 On March 4, 2010, the sole remaining defendant—Dr.
Bernstein—filed the current motion. Plaintiff failed to submit
1 At the time the action was originally filed, a response. Accordingly, on August 20, 2010, I issued an
Order advising plaintiff that if he wished to oppose the
the Honorable Leonard B. Sand, United States
motion, he must submit his opposition by September 15, 2010
District Judge, granted plaintiff's application for in
and that after that date I would consider the motion fully
forma pauperis status based on plaintiff's ex parte
submitted and ripe for decision (Order dated August 20, 2010
submission (Docket Item 1). Although the present
(Docket Item 15)). The only submission plaintiff has made
application seeking to revoke plaintiff's in forma
in response to my Order is a multi-part form issued by the
pauperis status is non-dispositive, I address it by
New York State Department of Correctional Services entitled
way of a report and recommendation to eliminate
“Disbursement or Refund Request.”2 By this form, plaintiff
any appearance of a conflict between the decision
appears to request that the New York State Department of
of a district judge and that of a magistrate judge.
Correctional Services pay the filing fee for this action. The
form is marked “Denied.”
PITMAN, United States Magistrate Judge.
*1 TO THE HONORABLE BARBARA S. JONES, United 2 Plaintiff sent this form directly to my chambers,
States District Judge, and it has not been docketed by the Clerk of the
Court. The form will be docketed at the time this
Report and Recommendation is issued.
I. Introduction
By notice of motion dated March 4, 2010 (Docket Item 11),
III. Analysis
defendant moves pursuant to 28 U.S.C. § 1915(g) to revoke
28 U.S.C. § 1915 permits an indigent litigant to commence
plaintiff's in forma pauperis (“IFP”) status on the ground that
an action in a federal court without prepayment of the filing
plaintiff has previously had at least three Section 1983 actions
fee that would ordinarily be charged. Although an indigent,
dismissed as frivolous, malicious or failing to state a claim
incarcerated individual need not prepay the filing fee at the
upon which relief could be granted, and has not shown that he
time at the time of filing, he must subsequently pay the fee,
is in imminent danger of serious physical injury. Defendant
to the extent he is able to do so, through periodic withdrawals
further seeks an order directing that the action be dismissed
from his inmate accounts. 28 U.S.C. § 1915(b); Harris v.
unless plaintiff pays the full filing fee within thirty (30) days.
City of New York, 607 F.3d 18, 21 (2d Cir.2010). To prevent
For the reasons set forth below, I respectfully recommend that
abuse of the judicial system by inmates, paragraph (g) of
defendant's motion be granted.
this provision denies incarcerated individuals the right to
proceed without prepayment of the filing fee if they have
II. Facts repeatedly filed meritless actions, unless such an individual
Cir.2004) (“[T]he purpose of the PLRA ... was plainly to 3 It appears that plaintiff uses the names David
curtail what Congress perceived to be inmate abuses of the J. Cash and Dennis Nelson interchangeably. In
judicial process.”); Nicholas v. Tucker, 114 F.3d 17, 19 (2d his complaint in this matter, plaintiff states that
Cir.1997). Specifically, paragraph (g) provides: the Departmental Identification Number, or DIN,
assigned to him by the New York State Department
of Correctional Services (“DOCS”) is 94–B–0694
*2 In no event shall a prisoner bring (Compl. at 7). DOCS inmate account records
a civil action or appeal a judgment submitted by plaintiff in connection with his
in a civil action or proceeding under application for IFP status indicate that DIN 94–
this section if the prisoner has, on B–0694 is assigned to Dennis Nelson. In addition,
3 or more prior occasions, while the DOCS form described in footnote two bears
incarcerated or detained in any facility, the docket number of this action, but is signed in
brought an action or appeal in a court the name of Dennis Nelson and was sent in an
of the United States that was dismissed envelope identifying the sender as Dennis Nelson.
on the grounds that it is frivolous, A subsequent action has been filed in this Court
malicious, or fails to state a claim upon in which the plaintiff identifies himself as Dennis
which relief may be granted, unless the Nelson but lists his DIN as 94–B–0694, the same
prisoner is under imminent danger of DIN used by plaintiff here. Finally, plaintiff has
serious physical injury. submitted nothing to controvert the assertion in
defendant's papers that David Cash and Dennis
Nelson are the same person. In light of all these
28 U.S.C. § 1915(g). facts, I conclude that David Cash and Dennis
Nelson are both names used by plaintiff.
If an inmate plaintiff seeks to avoid prepayment of the filing
fee by alleging imminent danger of serious physical injury, • In Nelson v. Nesmith, No. 9:06–CV–1177 (TJM)(DEP),
there must be a nexus between the serious physical injury 2008 WL 3836387 (N.D.N.Y. Aug. 13, 2008), plaintiff
asserted and the claims alleged. Pettus v. Morgenthau, 554 again filed an action concerning the medical care
F.3d 293, 298 (2d Cir.2009). he was receiving for his left leg. The Honorable
Thomas J. McAvoy, United States District Judge,
Section 1915(g) clearly prevents plaintiff from proceeding accepted the Report and Recommendation of Magistrate
in this action without prepayment of the filing fee. Judge Peebles, and revoked plaintiff's IFP status and
The memorandum submitted by defendant establishes that dismissed the action on the ground that plaintiff had
plaintiff has had his IFP status revoked on at least four prior previously commenced at least three actions that had
occasions as a result of his repeatedly filing meritless actions. been dismissed on the merits. 2008 WL 3836387 at *1,
*7.
• In 2005, plaintiff commenced an action in the United
States District Court for the Northern District of New • In Nelson v. Spitzer, No. 9:07–CV–1241 (TJM)
York seeking to have his infected leg amputated. (RFT), 2008 WL 268215 (N.D.N.Y. Jan. 29, 2008),
Nelson3 v. Lee, No. 9:05–CV–1096 (NAM)(DEP), 2007 Judge McAvoy again revoked plaintiff's IFP status
WL 4333776 (N.D.N.Y. Dec. 5, 2007). In that matter, on the ground that plaintiff had commenced three
the Honorable Norman A. Mordue, Chief United States or more actions that constituted “strikes” under
District Judge, accepted and adopted the Report and Section 1915(g) and had not shown an imminent
Recommendation of the Honorable David E. Peebles, threat of serious physical injury. 2008 WL 268215
United States Magistrate Judge, that plaintiff had at *1–*2.
brought three or more prior actions that had been
• Finally, in Nelson v. Chang, No. 08–CV–1261
dismissed for failure to state a claim and that plaintiff's
(KAM)(LB), 2009 WL 367576 (E.D.N.Y. Feb. 10,
IFP status should, therefore, be revoked. 2007 WL
2009), the Honorable Kiyo A. Matsumoto, United
cases discussed above, that plaintiff had exhausted that this vague statement is insufficient to support a finding
the three strikes permitted by Section 1915(g) that plaintiff is in imminent danger of serious physical
and could not proceed IFP in the absence of a injury.5
demonstration of an imminent threat of serious
physical injury. 2009 WL 367576 at *2–*3. 5 Plaintiff has sent me several letters describing his
*3 As defendant candidly admits, there is one case in which
wound and its symptoms in detail, and I have
plaintiff's leg infection was found to support a finding of an
no doubt that the wound is serious. However, in
imminent threat of serious physical injury sufficient to come
granting summary judgment dismissing an action
within the exception to Section 1915(g). Nelson v. Scoggy,
last year based on the same allegations, Judge
No. 9:06–CV–1146 (NAM)(DRH), 2008 WL 4401874 at *2
Mordue of the Northern District found that there
(N.D.N.Y. Sept. 24, 2008). Nevertheless, summary judgment
was no genuine issue of fact that plaintiff's own
was subsequently granted for defendants in that case, and
conduct was responsible for the ineffectiveness of
the complaint was dismissed. Judge Mordue concluded that
the treatment he was provided:
there was no genuine issue of fact that plaintiff had received
Furthermore, to the extent that Nelson's medical
adequate medical care for his leg wound and that the failure
treatment was delayed, much of the delay
of the leg to heal was the result of plaintiff's own acts of
was due to his own refusal to cooperate with
self-mutilation and interference with the treatment provided.
medical staff and his self-mutilations. Nelson's
Nelson v. Scoggy, No. 9:06–CV–1146 (NAM)(DRH), 2009
actions to thwart the medical treatment of his
WL 5216955 at *3–*4 (N.D.N.Y. Dec. 30, 2009).4
wound cannot be construed as interference or
indifference by anyone else.... [T]he medical
4 Although the form complaint utilized by plaintiff treatment Nelson received complied with
expressly asks about prior actions involving the constitutional guarantees as it was appropriate,
same facts, plaintiff disclosed only the Scoggy timely, and delayed only by Nelson's own
action and expressly denied the existence of any actions.
other actions relating to his imprisonment (Compl. Nelson v. Scoggy, supra, 2009 WL 5216955 at *4.
at 6). Given plaintiff's total failure to respond to the
pending motion and his failure to even deny that
In light of the foregoing, there can be no reasonable dispute
he is actively thwarting treatment of his wound, it
that plaintiff has exceeded the three “strikes” allowed by
would be sheer speculation for me to conclude that
Section 1915(g) and that he cannot, therefore, proceed here
he is in imminent danger of a serious injury as a
without prepaying the filing fee unless he demonstrates
result of defendant's conduct.
an imminent threat of serious physical injury. Plaintiff has
declined to attempt to make this showing in response to
defendant's motion, and the only suggestion in the record IV. Conclusion
of serious physical injury is the bare statement in the Accordingly, for all the foregoing reasons, I find that plaintiff
complaint that plaintiff “need[s] to go back to a wound speci has had three or more prior actions dismissed as being
[a]list before the gane green [sic ] kills [him]” (Compl. at frivolous, malicious or failing to state a claim and that
5). “However, unsupported, vague, self-serving, conclusory plaintiff's in forma pauperis status should, therfore, be
speculation is not sufficient to show that Plaintiff is, in fact, revoked. If your Honor accepts this recommendation, I further
in imminent danger of serious physical harm.” Merriweather recommend that the action be dismissed unless plaintiff pays
v. Reynolds, 586 F.Supp.2d 548, 552 (D.S.C.2008), citing the filing fee in full within thirty (30) days of your Honor's
Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.2003) and final resolution of this motion.
White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir.1998);
see also Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.2003)
V. OBJECTIONS
(imminent danger exception to Section 1915(g) requires
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of
“specific fact allegations of ongoing serious physical injury,
the Federal Rules of Civil Procedure, the parties shall have
or of a pattern of misconduct evidencing the likelihood
fourteen (14) days from receipt of this Report to file written
of imminent serious physical injury”). Given the plaintiff's
with courtesy copies delivered to the Chambers of the Cir.1997); IUE AFL–CIO Pension Fund v. Herrmann, 9 F.3d
Honorable Barbara S. Jones, United States District Judge, 1049, 1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298,
500 Pearl Street, Room 1920, and to the Chambers of the 300 (2d Cir.1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57–
undersigned, 500 Pearl Street, Room 750, New York, New 59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237–
York 10007. Any requests for an extension of time for filing 38 (2d Cir.1983).
objections must be directed to Judge Jones. FAILURE TO
OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT
All Citations
IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE
APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 Not Reported in F.Supp.2d, 2010 WL 5185047
End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10314373. Public record. Not legal advice.