Lettieri v. Brigueal

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

DAVID C. LETTIERI,

Plaintiff,

3:23-CV-1597

v. (AMN/ML)

JENELLE BRIGUEAL,

Defendant.

_____________________________________________

APPEARANCES: OF COUNSEL:

DAVID C. LETTIERI

Plaintiff, Pro Se

Niagara County Jail

5526 Niagara Street Ex.

Lockport, New York 149094

MIROSLAV LOVRIC, United States Magistrate Judge

AMENDED ORDER and REPORT-RECOMMENDATION1

I. BACKGROUND

A. Procedural History

Plaintiff David C. Lettieri (“Plaintiff”) commenced this civil rights action pro se on

December 18, 2023, on a form complaint alleging that his rights were violated by Defendant

Jenelle Brigueal (“Defendant”). (Dkt. No. 1.) Plaintiff did not pay the filing fee for this action

and sought leave to proceed in forma pauperis (“IFP”). (Dkt. No. 2.)

1 The filing of this Amended Order and Report-Recommendation is intended to entirely

replace and moot the Order and Report-Recommendation at Dkt. No. 9.

On December 19, 2023, the undersigned denied Plaintiff’s motion for leave to proceed

IFP because his submission was incomplete. (Dkt. No. 4.) The undersigned’s order directed that

“should Plaintiff wish to proceed with this action, he must either (i) pay the $405.00 filing fee, or

(ii) submit a completed, signed, and certified inmate IFP application in accordance with this

Decision and Order within thirty (30) days from the date of the filing of this Decision and

Order.” (Dkt. No. 4 at 3.)

On January 11, 2023, Plaintiff filed an amended motion for leave to proceed IFP. (Dkt.

No. 5.) In addition, Plaintiff filed a Letter Request/Motion seeking a restraining order, and two

letters to the Court. (Dkt. Nos. 6, 7, 8.)

B. Complaint

Construed as liberally2 as possible, Plaintiff’s Complaint appears to allege that his civil

rights were violated by Defendant. (See generally Dkt. No 1.) The Complaint is far from clear

but appears to allege that sometime in May 2023, Defendant, who is employed by the Federal

Bureau of Investigations, “tampered with a witness that was on” Plaintiff’s witness list. (Dkt.

No. 1 at 5.) Based on these factual allegations, Plaintiff appears to assert the following two

claims: (1) a claim that Plaintiff’s “Sixth Amendment confrontation” right was violated; and (2)

a claim that Plaintiff’s Fifth Amendment due process right was violated. (Id. at 4.) As relief,

Plaintiff seeks $1,000,000 in damages. (Id. at 5.)

Plaintiff seeks leave to proceed IFP. (Dkt. No. 5.)

2 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)).

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 IFP

application, because he failed to provide the value of any cash, checking, or savings accounts he

owns. (Dkt. No. 5 at ¶ 4.) In addition, Plaintiff failed to provide the value of any real estate,

stocks, bonds, securities, other financial instruments, automobiles, or other assets he owns. (Id.

at ¶ 5.) 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

seventy-seven civil actions in the federal district courts since 2022. See PACER Case Locator

<https://pcl.uscourts.gov/pcl/pages/search/findParty.jsf> (last visited January 23, 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, (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);3 (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);4 (6) Lettieri v. Gaska, No. 24-CV-

0102 (N.D.N.Y. filed January 22, 2024); (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)

3 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).

4 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).

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);5 (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)

5 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).

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);6 (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);7 (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.

6 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).

7 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).

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);8 (66) Lettieri v. Vilando, No. 23-CV-1686 (N.D. Ohio filed Aug. 29, 2023);9 (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); and (77) Lettieri v. T-Mobile, No. 24-CV-0028 (W.D. Wash. filed Jan. 4, 2024).

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.

8 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).

9 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).

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.”10

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.

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.

10 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.

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, No. 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, Ҥ 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 298-

99.

In this case, the Complaint alleges that approximately one month before filing this action,

Defendant interacted with a witness on Plaintiff’s witness list. (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 2, 2023. Therefore, Plaintiff is barred from

proceeding IFP under Section 1915.

III. PLAINTIFF’S LETTER MOTION

Plaintiff also filed a letter motion seeking a restraining order. (Dkt. No. 6.) Because

Plaintiff’s IFP application is denied and this action cannot proceed without the payment of the

filing and administrative fees, I recommend that his letter motion be denied without prejudice to

refiling.

ACCORDINGLY, it is

ORDERED that Plaintiff's amended IFP application (Dkt. No. 5) 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 Amended 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

RECOMMENDED that Plaintiff’s Letter Motion (Dkt. No. 6) be DENIED without

prejudice to refiling; and it is further

ORDERED that the Clerk of the Court shall file a copy of this order on the docket of this

case and serve a copy upon the parties in accordance with the local rules.11

11 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)).

Dated: January 25, 2023

Binghamton, New York

Miroslav Lovric

U.S. Magistrate Judge

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). 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. P. 6(a)(1)(C).

11

Plaintiff has also filed two civil complaints in this District,

2023 WL 7017081 each of which is accompanied by a request to proceed

Only the Westlaw citation is currently available. in forma pauperis. In the first of these cases, Plaintiff

United States District Court, ED. New York. purports to be acting as the administrator of the estate of

an apparently deceased relative and alleges that the Broome

David Carmine LETTIERI, Plaintiff, County Humane Society unlawfully entered his relative's

V. home and took his relative's dog. Lettieri v. The Broome

The BROOME COUNTY HUMANE County Humane Society, No. 23-cv-7777 (E.D.N.Y. filed

SOCIETY, Department of Justice, and Oct. 10, 2023) (ECF No. 1). Although Plaintiff's complaint

Lo. in that case names as Defendants the U.S. Department of

Federal Bureau of Investigation, Defendants. □ : .

Justice and the Federal Bureau of Investigation, his complaint

David Carmine Lettieri, Plaintiff, .

makes no attempt to explain what role any employee of

□□ those agencies—or any other federal employee—played in

James Quinn Auricchio, Michael J. Roemer, Lawrence the events giving rise to Plaintiffs purported claim against

Joseph Vilardo, and Paul E. Bonanno, Defendants. the humane society. Jd. In the second case, Plaintiff asserts

claims for damages against the district judge and magistrate

23-CV-07777 (HG) (MMH), 23-CV-07830 (HG) (MMH) . . . .

judge who presided over his criminal proceedings in the

Western District, along with an Assistant U.S. Attorney who

Signed October 25, 2023 participated in the case and one of Plaintiff's own defense

Attorneys and Law Firms attorneys. Lettieri v. Quinn, No. 23-cv-7830 (E.D.NLY. filed

Oct. 16, 2023) (ECF No. 1). The basis for Plaintiff's damages

David Carmine Lettieri, Lockport, NY, Pro Se. claim is unclear, but he appears to assert that the facts alleged

in the indictment against him were sufficiently different from

the facts presented at trial, such that the Court should infer that

MEMORANDUM & ORDER the Government committed some kind of misconduct before

the grand jury. Jd.

HECTOR GONZALEZ, United States District Judge:

The statute that authorizes plaintiffs to receive in forma

“1 Plaintiff was convicted at trial earlier this year, in the neris status also contains a prohibition, commonly known

U.S. District Court for the Western District of New York, as the “three strikes rule,” that provides:

for enticement of a minor in violation of Pais US.C. §

2422(b) and is currently detained in a county jail located in

that district while awaiting sentencing. See United States v. In no event shall a prisoner bring a

Lettieri, No. 21-cr-20, 2023 WL 6531514, at *1 (W.D.N-Y. civil action or appeal a judgment in a

Oct. 6, 2023) (denying plaintiffs post-trial motions for civil action or proceeding under this

judgment of acquittal or for a new trial). Based on the section if the prisoner has, on 3 or more

Court's review of publicly available dockets in the Western prior occasions, while incarcerated

District, Plaimtiff has filed nearly 50 civil cases, many of or detained in any facility, brought

which he has purportedly brought on an in forma pauperis an action or appeal in a court of

basis, seeking permission to commence those cases without the United States that was dismissed

prepaying the district's filing fee. In response, the Western on the grounds that it is frivolous,

District has commenced a miscellaneous proceeding in which malicious, or fails to state a claim upon

it has ordered Plaintiff to show cause why he should not be which relief may be granted, unless the

prohibited from filing any new actions without paying the prisoner is under imminent danger of

applicable filing fees or submitting proper requests for in serious physical injury.

forma pauperis status. See In re David C. Lettieri, No. 23-

me-32 (W.D.N.Y. filed Sept. 5, 2023) (ECF No. 1).

Dismissing Plaintiff's claims pursuant to the three-strikes rule

*2 U.S.C. § 1915(g). Dismissing the complaint is the in Pal5¢ U.S.C. § 1915(g) is procedurally proper even though

proper remedy when a plaintiff secks in forma pauperis status _ plaintiff's in forma pauperis applications are incomplete. The

but is ineligible to receive such status under Palos U.S.C. § informa pauperis statute only exempts incarcerated plaintiffs

1915(g). See Griffin v. Carnes, 72 F-4th 16, 21 (2d Cir. 2023) from prepaying the fee to commence a case and authorizes

(“The district court correctly concluded that [the plaintiff] courts to collect the fee over time from a plaintiff's prison

was barred by the [Prison Litigation Reform Act's] three account even if a court grants in forma pauperis status. See

strikes provision from proceeding [in forma pauperis], and, Pll2g U.S.C. § 1915(b). To facilitate this collection process,

therefore, properly dismissed his complaint.”). ' A district the Second Circuit has required incarcerated plaintiffs secking

court need not hold an incarcerated plaintiff's lawsuit “in — in forma pauperis status to file a signed form authorizing

abeyance until he is able to pay the filing fees,” so long as such collection “before making any assessment of whether an

the dismissal is “without prejudice to [the plaintiff's] right appeal should be dismissed as frivolous, pursuant to □□□

to file new actions with payment of the filing fees.” Akassy

v. Hardy, 887 F.3d 91, 98 (2d Cir. 2018) (holding that “the U.S.C. § 1915(€)(2)(B)@).” Pa peonard v Lacy, 88 F.3d 181,

district court plainly ha[d] the authority to dismiss an action —‘182 (2d Cir. 1996). Although Plaintiff has provided the Court

filed in contravention” of Bos USC. § 1915( . with information about the balance of his account maintained

wc, g) and did not 4: . .

oa oy _. . by the facility where he is incarcerated, he has not provided

abuse [its] discretion” by dismissing plaintiff's case without the form authorizing the Court to collect money from that

prejudice). account. However, even though Plaintiff's failure to provide

oo. the authorization form arguably precludes the Court from

Plaintiff falls within this prohibition because at least three

of the cases that he has filed in the Western District on screening the merits of his claims, pursuant to Pas □□□□

an in forma pauperis basis were dismissed sua sponte for § 1915(e), it does not preclude the Court from dismissing

failure to state a claim before Plaintiff commenced either _pjaintiff's claims without prejudice pursuant to al59 USC

of his two cases in this District. See Lettieri v. W. Dist. of § 1915(g). Such a dismissal denies Plaintiff in forma pauperis

N.¥., No. 23-ev-770 (W.D.N.Y. Sept. 11, 2023) (ECF No. 7) status without assessing the merits of his claims, requires

(granting plaintiff in forma pauperis status but dismissing him to pay the filing fee upfront, and does not trigger the

complaint based on alleged failure by clerk's office employees process by which the Court may collect the filing fee in

to mail case filings pursuant to Pals, U.S.C. §§ 1915(e) installments from Plaintiff's prison account. See Meyers □□

(2)(B) and 1915A on the basis of immunity”); Lettieri Birdsong, —— F.4th ——, 2023 WL 6614357, at *3 (9th Cir.

U.S. Dep't of Justice, No. 23-cv-866 (W.D.N.Y. Sept. 19, 5993) (holding that Pills 1915(b) neither permits nor requires

2023) (ECF No. 3) (granting plaintiff in forma pauperis status the collection of fees” from a prisoner who seeks in forma

but dismissing complaint against Assistant U.S. Attorney

based on alleged violations of Federal Rules of Evidence P@#peris status but whose request is denied pursuant to □□□

at criminal trial “under al59 U.S.C. §§ 1915(e)(2)(B) and USS.C. § 1915(g)); Pa sith yv, Dist. of Columbia, 182 □□□□ □□□

1915A(b)”); Lettieri v. Vilardo, No. 23-cv-6498 (W.D.N.Y. 29-30 (D.C. Cir. 1999) (holding that prisoner whose request

Sept. 21, 2023) (ECF No. 3) (granting plaintiff in forma for in forma pauperis status was denied pursuant to □□□□□

pauperis status but dismissing complaint because judge who U.S.C. § 1915(g) was not required to pay filing fee out of

presided over plaintiffs criminal trial was immune from _ prison account).

civil suit based on his decisions related to the parties’

proposed jury instructions). Neither Plaintiff's complaints nor *3 Finally, if Plaintiff attempts to re-file these cases, even

his applications for in forma pauperis status make any attempt —_—if he were to pay the necessary filing fees, any such cases

to allege that he is in imminent danger of serious physical _ filed in this District would almost certainly be dismissed for

injury that would override the prohibition in Fal, ¢ USC. § lack of venue. Generally, a case must be filed in a judicial

1915(g). district where at least one defendant resides or im a judicial

district where the facts giving rise to the claim occurred. See

Pll2g U.S.C. § 1391(b). Accordingly, the appropriate venue

for Plaintiff's claims against the Defendants involved in his

criminal trial is the Western District of New York, and the

appropriate venue for his claims against the Broome County It Plaintiff wishes to reassert his claims, he must file new

Humane Society is the Northern District of New York. See 28 actions ™m a district court where venue is proper and pay the

U.S.C. § 112(a) (defining the Northern District of New York $402.00 filing fee for each case to the Clerk of Court for

to include Broome County). that district. The Court certifies pursuant to Pays US.C. §

1915(a)(3) that any appeal from this order would not be taken

in good faith and therefore denies in forma pauperis status for

CONCLUSION the purpose of any appeal. Pa Coppedge v. United States, 369

USS. 438, 444-45 (1962).

For the reasons set forth above, Plaintiff's applications to

proceed in forma pauperis are denied, and these cases are SO ORDERED.

dismissed without prejudice pursuant to Palos US.C. §

1915(g). The Clerk of Court is respectfully directed to enter ,

. . . All Citations

separate judgments, to close each case, and to mail copies

of this order and the forthcoming judgments to Plaintiff. The Slip Copy, 2023 WL 7017081

Clerk of Court is further directed to mail a copy of this order

to the Clerk of Court for the Western District of New York.

Footnotes

1 Unless noted, case law quotations in this order accept all alterations and omit internal quotation marks,

citations, and footnotes.

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

September 25 and 26, respectively, so those are the earliest

2023 WL 8003478 dates that he could have delivered them to the authorities

Only the Westlaw citation is currently available where he is incarcerated to be mailed to the Court. The

United States District Court, E.D. New York. latest of the dismissals in Plaintiff's prior cases relied upon

by the Court—i.e., his third strike—came in a decision

David Carmine LETTIERI, Plaintiff, dated September 21, 2023, and a judgment was entered the

Vv. same day. Therefore, Plaintiff had accumulated three strikes

The BROOME COUNTY HUMANE before he delivered either of his complaints in these two

SOCIETY, Department of Justice, and cases to authorities at the facility where he is incarcerated.

oo. ; Plaintiff's confidence that at least one of those decisions will

Federal Bureau of Investigation, Defendants.

David Carmine Lettieri. Plaintiff be overturned on appeal does not prevent him from having

NC EEE NES NS accumulated three strikes. The Supreme Court has held that,

□ when counting whether a plaintiff has received three strikes,

James Quinn Auricchio, Michael J. Roemer, Lawrence “the courts must count [a] dismissal even though it remains

Joseph Vilardo, and Paul E. Bonanno, Defendants. Pa

pending on appeal.” [~ Coleman vy. Tollefson, 575 U.S. 532,

23-CV-07777 (HG) (MMH), 23-CV-07830 (HG) (MMH) 534 (2015). Plaintiff has not cured his ineligibility for in

| forma pauperis status by paying the Court's filing fee, so the

Signed November 17, 2023 Court's dismissal of these two cases based on the three-strikes

tule still stands.

Attorneys and Law Firms

In each motion for reconsideration, Plaintiff attempts to argue

David Carmine Lettieri, Lockport, NY, Pro Se. why venue would be proper in this District. For example, he

argues that the dog that the Broome County Humane Society

allegedly stole from a relative at a location in the Northern

MEMORANDUM & ORDER District of New York previously lived most of its life in

HECTOR GONZALEZ. United § District Judee: Queens County. He also asserts that the judges and attorneys

United states District Judge: involved with his criminal trial in the Western District of New

*1 The Court previously dismissed without prejudice these York were part of a wide-ranging “RICO conspiracy,” but he

two lawsuits filed by Plaintiff, who is incarcerated ina county Provides no explanation as to how some aspect of that alleged

jail in the Western District of New York while awaiting conspiracy supposedly took place in this District. The Court

sentencing for a conviction of enticement of a minor in does not find either of these two venue arguments to be valid.

ro But even if Plaintiff's attempts to demonstrate proper venue

violation of P18 U.S.C. § 2422(b). See United States v. in this District were successful, the Court still would not

Lettieri, No. 21-cr-20, 2023 WL 6531514, al *I (W.D.N.Y. reconsider the dismissal of Plaintiff's cases because showing

Oct. 6, 2023) (denying plaintiff's post-trial motions for that venue is proper would not fix Plaintiff's ineligibility for

judgment of acquittal or for a new trial). The Court dismissed in forma pauperis status and his failure to pay the filing fees

both of these cases, pursuant to the three-strikes rule in Plog to commence these two cases.

§ 1915(g), because Plaintiff sought in forma pauperis

status but had already brought three lawsuits that had been

dismissed sua sponte as frivolous or for failure to state a CONCLUSION

claim. Plaintiffhas responded by filing, in both cases, motions

for reconsideration and, alternatively, notices of appeal. *2 For the reasons set forth above, Plaintiffs motions for

reconsideration are denied. Plaintiff's cases remain dismissed

Th ies Plaintiff i fe i ion. . 4

° Court denies Plaintiff's motions or reconsideration without prejudice pursuant to Plog U.S.C. § 1915(g). The

Plaintiff incorrectly argues that the prison mailbox rule . . .

that each of these two cases was deemed filed before Clerk of Court is respectfully directed to mail a copy of

means . , this order to Plaintiff. Since Plaintiff filed notices of appeal

he received the third dismissal relied upon by the Court . . . . .

. concurrently with his motions for reconsideration, those

to invoke the three-strikes rule. But when Plaintiff signed . . .

, notices of appeal become effective as of the date of this

each of the complaints in these two cases, he dated them

order denying the motions. See Fed. R. App. P. 4(a)(4)(B) dismissal of these cases is without prejudice, Plaintiff may

(i). However, Plaintiff must either pay the $505.00 appellate commence these lawsuits by filing new complaints ma

filing fee for each case or obtain from the Second Circuit district where venue would be proper and by paying that

leave to appeal in forma pauperis because the Court reiterates district's filing fee.

its prior holding that any appeals from the Court's prior

dismissal order, or this order denying Plaintiff's motions SO ORDERED.

for reconsideration, would not be taken in good faith, and

the Court therefore denies in forma pauperis status for the All Citations

purpose of any appeal. PF coppedge v. United States, 369

USS. 438, 444-45 (1962). Alternatively, since the Court's SHP Copy, 2023 WL 8003478

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Chappius, 618 F.3d 162, 167 (2d Cir. 2010); □□□ □□□□

KeyCite Blue Flag — Appeal Notification § 191 5(a)- ab). But certain prisoners—‘so-called ‘frequent

Appeal Filed by Lettieri v. The Broome County Humane Society, 2nd Cir.,

December 27, 2023 filers’ ”—are barred from filing IFP. P2chavis, 618 F.3d at

167. The statute defines such litigants as those who have,

2023 WL 9066861

Only the Westlaw citation is currently available.

United States District Court, W.D. New York. on 3 or more prior occasions, while

incarcerated or detained in any facility,

David C. LETTIERI, Plaintiff, brought an action or appeal ... that

v- was dismissed on the grounds that it

The BROOME COUNTY HUMANE is frivolous, malicious, or fails to state

SOCIETY, et al.,! Defendant. a claim upon which relief may be

granted, unless the prisoner is under

23-CV-1223-LIV imminent danger of serious physical

| injury.

Signed December 4, 2023

Attorneys and Law Firms

□□□ US.C. § 1915(g).

David C. Lettieri, Youngstown, OH, Pro Se.

Courts refer to this provision as the “three strikes rule.”

Malik v. McGinnis, 293 F.3d 559, 560 (2d Cir. 2002). Claims

ORDER dismissed because of judicial or prosecutorial immunity are

LAWRENCE J. VILARDO, UNITED STATES DISTRICT “frivolous” and therefore “strikes” under Palas USC. §

JUDGE 1915(g). See Pavitis y Fischer, 645 F.3d 176, 177 (2d Cir.

*1 The pro se plaintiff, David C. Lettieri, was a prisoner 2011) Gudicial immunity); Collazo v. Pagano, 656 F3d 131,

□ □ ° 134 (2d Cir. 2011) (prosecutorial immunity). Likewise, any

incarcerated at the Niagara County Jail when he commenced dismissal for failure to state a claim is a “strike” regardless

this action under Pay. U.S.C. § 1983. Docket Item 1. He of whether the dismissal was with or without prejudice. See

asserts claims for “unlawful search and se[iz]ure,” “excessive Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1727 (2020).

force,” and violation of his right to “[d]ue process.” /d. at 5.

A prisoner who has accumulated “three strikes” may proceed

has moved to proceed in forma pauperis (“IFP”) IFP only if the complaint alleges that “the prisoner is under

under Pll2g U.S.C. § 1915(a)- ab). Docket Item 2. For the imminent danger of serious physical injury.” Pll2g US.C.

reasons that follow, Lettieri's motion to proceed IFP is denied. § 1915(g). A danger that has “dissipated by the time [the]

Therefore, his complaint will be dismissed without prejudice complaint is filed” is not “imminent.” Abreu v. Brown, 317

unless he pays the required $402.00 filing and administrative F. Supp. 3d 702, 704 (W.D.N.Y. 2018) (quoting Pa Chavis,

fees. * 618 F.3d at 169); see Malik, 293 F.3d at 563 (holding

that “by using the term ‘imminent,’ Congress indicated that

it wanted to include a safety valve for the ‘three strikes’

LEGAL PRINCIPLES tule to prevent impending harms, not those harms that had

already occurred” (alteration omitted)). So to be entitled to

Under Pll2g U.S.C. § 1915, as amended by the Prison the exception, the prisoner must adequately allege a danger

Litigation Reform Act of 1995, a prisoner who cannot afford that “exist[s] at the time the complaint is filed.” Malik, 293

to pay court filing fees may proceed IFP and repay the E3d at 563.

fees according to a “structured payment plan.” PS chavis v.

DISCUSSION For that reason, Lettieri cannot proceed IFP unless he faces

“imminent danger of serious physical injury.” Palos US.C.

2 The three strikes rule squarely applies here. In addition § 1915(g); see also Malik, 293 F.3d at 562. But no reading

to this case, Lettieri has filed more than 50 actions in this th lai id hat is th 5 There

Court in the past year. See Lettieri v. Dep't of Just., Case. of the complaint could suggest that is the case. □□□□□□□□

No. 23-cv-865, Docket Item 3, at 1 nl (W.D.N.Y. Oct. Lettieri is barred from proceeding IFP under P&section 1915.

19, 2023). At least three of those cases were dismissed

because the defendants were immune from suit. See Lettieri v.

Vilardo, Case No. 23-cv-6498, Docket Item 3 (W.D.N_Y. Sept. ORDER

21, 2023) (dismissing complaint due to judicial immunity);

Lettieri v. Western Dist. of New York, Case No. 23-cv-770, _ Lettieri's motion to proceed IFP, Docket Item 2, therefore is

Docket Item 7 (W.D.N.Y. Sept. 11, 2023) (same); Lettieri . — DENIED. If Lettieri wants to pursue this action, he must pay

Dep't of Just., Case No. 23-cv-866, Docket Item 3(W.D.N.Y. the $402.00 filing and administrative fees. If Lettieri fails to

Sept. 19, 2023) (dismissing complaint due to prosecutorial _pay the full filing and administrative fees within 30 days of

immunity). ° Because the Second Circuit has held that the date of this order, this case will be dismissed without

. . judi ithout further order of the Court.

dismissals based on immunity count as “strikes,” Mills, prejudice without further order of the Cour

45 177; F. 134, Lettieri h

645 F.3d at 177; Collazo, 656 F.3d at 134, Lettieri has SO ORDERED.

accumulated three strikes under Plog USS.C. § 1915(g). 4

All Citations

Slip Copy, 2023 WL 9066861

Footnotes

1 The complaint—and thus the official case caption—names “The Broome County Humane” instead of “The

Broome County Humane Society,” which is the entity that Lettieri seems to intend to sue. Docket Item 1

at 1, 5. The Clerk of the Court shall correct the caption accordingly. The other defendants named are the

Department of Justice and the Federal Bureau of Investigation (“FBI”). /d.

2 The fee to file a civil action is $350.00. Effective May 1, 2013, the Judicial Conference of the United

States added an administrative fee of $50.00 to the cost of filing a civil lawsuit in district court. See

September 2012 Report of the Proceedings of the Judicial Conference of the United States, available at

http://www.uscourts.gov/about-federal-courts/reports-proceedings-judicial-conference-us.

Effective December 1, 2020, this fee was increased to $52.00. See District Court Miscellaneous Fee

Schedule, https://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule.

3 Those three cases are not the only ones filed by Lettieri that have been dismissed for reasons that likely

are “strikes.” See, e.g., Lettieri v. Daniels, Case No. 23-cv-867, Docket Item 3 (W.D.N.Y. Oct. 16, 2023)

(dismissing complaint for failure to state a claim); Lettieri v. Auricchio, Case No. 23-cv-875, Docket Item 3

(W.D.N.Y. Oct. 11, 2023) (same); Lettieri v. Reynolds, Case No. 23-cv-925, Docket Item 4 (W.D.N.Y. Oct.

17, 2023) (same); Lettieri v. Dep't of Just., Case No. 23-cv-897, Docket Item 3 (W.D.N.Y. Oct. 10, 2023)

(dismissing complaint due to prosecutorial immunity). In fact, none of Lettieri's civil complaints that this Court

has screened under Plog U.S.C. §§ 1915(e)(2)(b) and 1915A have raised colorable claims. So Lettieri likely

has many more than three strikes. But three are enough. Palzg U.S.C. § 1915(g).

4 Three courts, including this one, have found that Lettieri has garnered three strikes under Psection 1915.

See Lettieri v. Vilardo, Case No. 23-cv-6563 (W.D.N. Y Oct. 10, 2023) (Wolford, C.J.) (denying Lettieri's

motion to proceed IFP under the three strikes rule); Lettieri v. Broome Cnty. Humane Soc'y, 2023 WL

7017081, at *2-3 (E.D.N.Y. Oct. 25, 2023) (Gonzalez, J.) (same); Lettieri v. Hockwater, Case No. 23-cv-1123,

Docket Item 3 (W.D.N.Y. Nov. 13, 2023) (Vilardo, J.) (same).

5 Lettieri alleges that “[t]ne FBI [IJet the Broome County Humane Society [break] [i]nto [his] [hlouse and take

whatever they wanted,” including “a rat.” Docket Item 1 at 5. He then alleges that “they” are “trying to extort

money [f]or [i]llegal[ly] tak[ing] care of the [rJat,” although he does not clarify who “they” are. /d. Although it is

difficult to understand the complaint in places, no part of it suggests that Lettieri was in any “imminent danger

of serious physical injury” at the time of filing. Palzg U.S.C. § 1915(g).

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Chappius, 618 F.3d 162, 167 (2d Cir. 2010); □□□ □□□□

KeyCite Blue Flag — Appeal Notification § 191 5(a)- ab). But certain prisoners—‘so-called ‘frequent

Appeal Filed by Lettieri v. Auricchio, 2nd Cir, December 27, 2023

filers’ °—are barred from filing IFP. Plichavis, 618 F.3d at

2023 WL 9066873 167. The statute defines such litigants as those who have,

Only the Westlaw citation is currently available.

United States District Court, W.D. New York.

on 3 or more prior occasions, while

David C. LETTIERI, Plaintiff, incarcerated or detained in any facility,

v. brought an action or appeal ... that

James Quinn AURICCHIO, ! Defendant. was dismissed on the grounds that it

is frivolous, malicious, or fails to state

23-CV-1121-LJV a claim upon which relief may be

| granted, unless the prisoner is under

Signed December 4, 2023 imminent danger of serious physical

injury.

Attorneys and Law Firms

David C. Lettieri, Lockport, NY, Pro Se.

□□□ US.C. § 1915(g).

ORDER Courts refer to this provision as the “three strikes rule.”

Malik v. McGinnis, 293 F.3d 559, 560 (2d Cir. 2002). Claims

LAWRENCE J. VILARDO, UNITED STATES DISTRICT dismissed because of judicial or prosecutorial immunity are

JUDGE

“frivolous” and therefore “strikes” under Palas USC. §

“1 The pro se plaintiff, David C. Lettieri, was a prisoner 1915/9) see Paliills v. Fischer, 645 F.3d 176, 177 (2d Cir

incarcerated at the Niagara County Jail when he commenced 2011) (judicial immunity); Collazo v. Pagano, 656 □□□□ 131,

this action under Pay, U.S.C. § 1983. Docket Item 1. 134 (2d Cir. 2011) (prosecutorial immunity). Likewise, any

He alleges that his former defense attorney, James Quinn — dismissal for failure to state a claim is a “strike” regardless

Auricchio, violated his right to due process and provided — of whether the dismissal was with or without prejudice. See

ineffective assistance of counsel.~ Docket Item 1 at 5. Lomax y. Ortiz-Marquez, 140 8. Ct. 1721, 1727 (2020).

Lettieri has moved to proceed in forma pauperis (“IFP”) “2 A prisoner who has accumulated “three strikes” may

proceed IFP only if the complaint alleges that “the prisoner

under □□□ U.S.C. § 1915(a) Pa). Docket Item 2. For the

reasons that follow, Lettieri's motion to proceed IFP is denied, 18 ¥8der imminent danger of serious physical injury.” □□□

Therefore, his complaint will be dismissed without prejudice U-S-C. § 1915(g). A danger that has “dissipated by the

unless he pays the required $402.00 filing and administrative "me [the] complaint is filed” is not “imminent.” Abr □□□

Brown, 317 F. Supp. 3d 702, 704 (W.D.N.Y. 2018) (quoting

PS chavis, 618 F.3d at 169); see Malik, 293 F.3d at 563

(holding that “by using the term ‘imminent,’ Congress

indicated that it wanted to include a safety valve for the ‘three

LEGAL PRINCIPLES strikes’ rule to prevent impending harms, not those harms that

had already occurred” (alteration omitted)). So to be entitled

Under Pag U.S.C. § 1915, as amended by the Prison 19 the exception, the prisoner must adequately allege a danger

Litigation Reform Act of 1995, a prisoner who cannot afford that “exist[s] at the time the complaint is filed.” Malik, 293

to pay court filing fees may proceed IFP and repay the F.3d at 563.

fees according to a “structured payment plan.” PB Chavis v,

DISCUSSION 1915(g); see also Malik, 293 F.3d at 562. But his complaint

does not even suggest that is the case. Instead, his complaint

The three strikes rule squarely applies here. In addition to alleges an injury in connection with his criminal trial, which

this case, Lettieri has filed more than 50 actions in this ended months ago. ° Therefore, Lettieri is barred from

Court in the past year. See Lettieri v. Dep't of Just., Case. □ a

No. 23-cv-865, Docket Item 3, at 1 n.l (W.D.N.Y. Oct. proceeding IFP under I" section 1915.

19, 2023). At least three of those cases were dismissed

because the defendants were immune from suit. See Lettieri v.

Vilardo, Case No. 23-cv-6498, Docket Item 3 (W.D.N_Y. Sept. ORDER

21, 2023) (dismissing complaint due to judicial immunity);

Lettieri v. Western Dist. of New York, Case No. 23-cv-770, *3 Lettieri's motion to proceed IFP, Docket Item 2, therefore

Docket Item 7 (W.D.N.Y. Sept. 11, 2023) (same); Lettieri ¥. is DENIED. If Lettieri wants to pursue this action, he must

Dep't of Just., Case No. 23-cv-866, Docket Item 3 (W.D.N.Y. pay the $402.00 filing and administrative fees. If Lettieri fails

Sept. 19, 2023) (dismissing complaint due to prosecutorial ' Pay the full filing and administrative fees within 30 days

immunity). 4 Because the Second Circuit has held that of the date of this order, this case will be dismissed without

prejudice without further order of the Court.

dismissals based on immunity count as “strikes,” see Pai Ils,

645 F.3d at 177; Collazo, 656 F.3d at 134, Lettieri has SO ORDERED.

accumulated three strikes under Plog USS.C. § 1915(g). >

All Citations

For that reason, Lettieri cannot proceed IFP unless he faces

danger of serious physical injury.” □□□ U.S.C. § Slip Copy, 2023 WL 9066873

Footnotes

1 Lettieri's complaint, and thus the official case caption, misspelled Auricchio's name, which appears correctly

here. The Clerk of the Court shall correct the caption accordingly.

2 On June 14, 2023, a jury found Lettieri guilty on one count of enticement of a minor in violation of □□□□

U.S.C. § 2422(b). See United States v. Lettieri, Case No. 21-cr-20, Docket Items 146, 150 (W.D.N.Y. June

14, 2023). Auricchio represented Lettieri in this case from April 15, 2021, see id., Docket Item 17 □□□□□□□□□

Apr. 15, 2021), until March 3, 2022, id., Docket Item 38 (W.D.N.Y. Mar. 3, 2022).

3 The fee to file a civil action is $350.00. Effective May 1, 2013, the Judicial Conference of the United

States added an administrative fee of $50.00 to the cost of filing a civil lawsuit in district court. See

September 2012 Report of the Proceedings of the Judicial Conference of the United States, available at http://

www.uscourts.gov/about-federal-courts/reports-proceedings-judicial-conference-us. Effective December 1,

2020, this fee was increased to $52.00. See District Court Miscellaneous Fee Schedule, https://

www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule.

4 Those three cases are not the only ones filed by Lettieri that have been dismissed for reasons that likely

are “strikes.” See, e.g., Lettieri v. Daniels, Case No. 23-cv-867, Docket Item 3 (W.D.N.Y. Oct. 16, 2023)

(dismissing complaint for failure to state a claim); Lettieri v. Auricchio, Case No. 23-cv-875, Docket Item 3

(W.D.N.Y. Oct. 11, 2023) (same); Lettieri v. Reynolds, Case No. 23-cv-925, Docket Item 4 (W.D.N.Y. Oct.

17, 2023) (same); Lettieri v. Dep't of Just., Case No. 23-cv-897, Docket Item 3 (W.D.N.Y. Oct. 10, 2023)

(dismissing complaint due to prosecutorial immunity). In fact, none of Lettieri’s civil complaints that this Court

has screened under Plog U.S.C. §§ 1915(e)(2)(b) and 1915A have raised colorable claims. So Lettieri likely

has many more than three strikes. But three are enough. Plog U.S.C. § 1915(g).

° Three courts, including this one, have found that Lettieri has garnered three strikes under Psection 1915.

See Lettieri v. Vilardo, Case No. 23-cv-6563, Docket Item 3 (W.D.N.Y. Oct. 10, 2023) (Wolford, C.J.) (denying

Lettieri's motion to proceed IFP under the three strikes rule); Lettieri v. Broome Cnty. Humane Soc'y, 2023

WL 7017081, at *2-3 (E.D.N.Y. Oct. 25, 2023) (Gonzalez, J.) (same); Lettieri v. Hockwater, Case No. 23-

cv-1123, Docket Item 3 (W.D.N.Y. Nov. 13, 2023) (Vilardo, J.) (same).

6 Lettieri sues Auricchio for violation of his due process rights and for ineffective assistance of counsel. Docket

Item 1 at 5. He alleges that he was shown an “affidavit” that was purportedly signed by him but that he “[d]id

not sign anything and can prove that the signature was [florged.” /d. at 8. He argues that this “show[s]” that

Auricchio “committed a crime.” /d. Those assertions do not suggest that Lettieri was in any “imminent danger

of serious physical injury” when he filed the complaint. See Pllzg U.S.C. § 1915(g).

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

2020 WL 4700902 “[A] prisoner can proceed IFP even after incurring three

Only the Westlaw citation is currently available. strikes if his complaint alleges an ‘imminent danger of serious

United States District Court, S.D. New York. physical injury.’ ” Pi chavis vy. Chappius, 618 F.3d 162, 169

David CARTER, Plaintiff, (2d Cir. 2010) (quoting Pazg USC. § 1915(g)). Moreover,

Vv. courts “should not make an overly detailed inquiry into

NEW YORK STATE; C.O. Morges, Downstate whether the allegations qualify for the exception” because

Correctional Facility; C.O. Melendez, Pa, 1915(g) “concerns only a threshold procedural question”

Downstate Correctional Facility, Defendants. about when payment for the filing fee is to be made. Id.

Plaintiff alleges that on May 14, 2019, Correction Officer

20-CV-5955 (CM) Morges deliberately pushed him down a stairwell at Great

| Meadow Correctional Facility. Correction Officer Melendez

Signed 08/12/2020 then allegedly helped Correction Officer Morges further

Attorneys and Law Firms physically assault Plaintiff at the bottom of the stairwell. I

David Carter, East Elmhurst, NY, pro se. In considering whether a prisoner's complaint falls within

the imminent danger exception, “it is not sufficient to allege

that ‘harms ... had already occurred’ ” before the complaint

ORDER OF DISMISSAL UNDER 28 U.S.C. § 1915(g) was filed. Akassy v. Hardy, 887 F.3d 91, 96 (2d Cir. 2018);

Pa ettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009)

COLLEEN McMAHON, Chief United States District Judge: (“[A] three-strikes litigant is not excepted from the filing fee if

*1 Plaintiff. currently detained at the George R. Vierno he alleges a danger that has dissipated by the time a complaint

Center in the custody of the New York City Department is filed. ). But allegations of past violence can satisfy the

of Correction (DOC), filed this action pro se in the United imminent danger exception when, for example, the past harms

States District Court for the Northern District of New York, are part of an ongoing pattern of acts. Plchavis, 618 F.3d at

which transferred it here. Plaintiff seeks to proceed without 170.

prepayment of fees, that is, in forma pauperis (“IFP”).

Plaintiff is barred, however, from filing any new action IFP _— Plaintiff's allegations that he suffered a past assault while

while a prisoner. See Carter v. New York City John Doe Corr. incarcerated at Downstate Correctional Facility do not

Officer, ECF 1:16-CV-3466, 6 (S.D.N.Y. Aug. 25, 2016). suggest that he currently faces an imminent danger. Plaintiff

That order relied on al59 U.S.C. § 1915(g), which provides was incarcerated at Great Meadow Correctional Facility

that: when he filed this complaint in the United States District

Court Northern District of New York, and he is currently

detained at GRVC in DOC custody. Plaintiff makes no

allegation suggesting that this May 2019 incident involving

In no event shall a Prisoner bring a two correction officers at Downstate Correctional Facility is

civil action [IFP] if the prisoner has, .

" part of a continuing pattern of ongoing acts.

on 3 or more prior occasions, while

incarcerated or detained m any facility, *2 The Court therefore denies Plaintiff's request to proceed

brought an action or appeal in a court

of the United States that was dismissed IFP in this action because he is barred under Pals 1915(g)

on the grounds that it is frivolous, and the complaint does not show that he faces imminent

malicious, or fails to state a claim upon danger. Plaintiff therefore must prepay the $350.00 filing fee

which relief may be granted, unless the to proceed with this action.

prisoner is under imminent danger of

serious physical injury.

CONCLUSION The Court certifies, pursuant to Paz: U.S.C. § □□□□□□□□□□□

□ that any appeal from this order would not be taken in good

The Clerk of Court is directed to mail a copy of this faith, and therefore IFP status is denied for the purpose of

order to Plaintiff and note service on the docket. The Court fo

denies Plaintiff's request to proceed IFP, and the complaint is 9 appeal. See Coppedge v. United States, 369 U.S. 438,

dismissed without prejudice under the PLRA's “three-strikes” 444-45 (1962).

tule. See Pazg USS.C. § 1915(g). > Plaintiff remains barred

from filing any future action IFP while in custody, unless he SO ORDERED.

is under imminent threat of serious physical injury. > Id.

is under imminent threat o us phy: Ury. All Citations

Not Reported in Fed. Supp., 2020 WL 4700902

Footnotes

1 The Court previously dismissed Plaintiff's April 30, 2020 complaint, which appears to have brought claims

arising from the same incident at Downstate Correctional Facility. See Carter v. Morges, No. 20-CV-3367

(CM) (S.D.N.Y. May 18, 2020).

2 Plaintiff may commence a new action by paying the filing fee. If Plaintiff does so, that complaint will be

reviewed under 28 U.S.C. § 1915A, which requires the Court to dismiss any civil rights complaint from a

prisoner if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks

monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).

3 The Court may bar any vexatious litigant (including a nonprisoner) from filing future actions (even if the filing

fee is paid) without first obtaining leave from the Court. See In re Martin-Trigona, 9 F.3d 226, 227-30 (2d Cir.

1993) (discussing sanctions courts may impose on vexatious litigants, including “leave of court” requirement).

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