Vazquez-Diaz v. Doe

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

LUIS A. VAZQUEZ-DIAZ,

Plaintiff,

21-CV-3447 (LTS)

-against-

ORDER TO SHOW CAUSE UNDER

28 U.S.C. § 1915(g)

JOHN DOE, WARDEN OF MCC/NY, et al.,

Defendants.

LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff, who is currently incarcerated in the Federal Medical Center in Springfield,

Missouri, brings this pro se action under 42 U.S.C. § 1983, alleging the loss of his money and

property at multiple correction facilities in New York. He seeks to proceed without prepayment

of fees, that is, in forma pauperis (IFP). For the following reasons, the Court directs Plaintiff to

show cause why his IFP application should not be denied under 28 U.S.C. § 1915(g), the Prison

Litigation Reform Act’s three-strikes provision, and this action dismissed.

PRISON LITIGATION REFORM ACT

Congress adopted the Prison Litigation Reform Act (PLRA) with the purpose of deterring

not only frivolous and malicious civil actions, but also actions that fail to state a claim on which

relief may be granted. See Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1726 (2020); Nicholas v.

Tucker, 114 F.3d 17, 19 (2d Cir 1997). To serve this deterrent purpose, the PLRA includes the

following “three-strikes” provision:

In no event shall a prisoner bring a civil action…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). Consequently, a prisoner who has filed at least three civil actions or appeals

meeting these criteria is ineligible to proceed IFP and must pay the filing fees before the Court

can entertain a new civil action unless the prisoner qualifies for the “imminent danger”

exception.

Plaintiff has filed multiple cases in this Court under the names Luis Vazquez and Luis

Vasquez. The Court has identified the following civil actions filed by Plaintiff as strikes under

section 1915(g):

(1) Vazquez v. Gonzalez, No. 97-CV-0751 (TPG) (S.D.N.Y. Feb. 5, 1997), which

was dismissed for failure to state a claim on which relief may be granted under

former 28 U.S.C. § 1915(d);

(2) Vasquez v. Fisher, No. 07-CV-2069 (KMW) (S.D.N.Y. Mar. 12, 2007), which

was dismissed for failure to state a claim on which relief may be granted;

(3) Vasquez v. Doe, No. 07-CV-3020 (KMW) (S.D.N.Y. Apr. 16, 2007), which was

dismissed for failure to state a claim on which relief may be granted and on

immunity grounds;

(4) Vasquez v. Doe, No. 07-CV-3022 (KMW) (S.D.N.Y. Apr. 16, 2007), which was

dismissed for failure to state a claim on which relief may be granted;

(5) Vasquez v. Doe, No. 07-CV-3023 (KMW) (S.D.N.Y. Apr. 16, 2007), which was

dismissed for failure to state a claim on which relief may be granted;

(6) Vasquez v. Doe, No. 07-CV-3024 (KMW) (S.D.N.Y. Apr. 16, 2007), which was

dismissed for failure to state a claim on which relief may be granted; and

(7) Vasquez v. Doe, No. 07-CV-3026 (KMW) (S.D.N.Y. Apr. 16, 2007), which was

dismissed for failure to state a claim on which relief may be granted; and

(8) Vazquez v. Pendergast, No. 07-CV-5505 (KMW) (S.D.N.Y. June 11, 2007),

which was dismissed for failure to state a claim on which relief may be granted;

and

(9) Vazquez v. Walker, No. 07-CV-5506 (KMW) (S.D.N.Y. June 11, 2007), which

was dismissed for failure to state a claim on which relief may be granted.

The Court finds that Plaintiff has accumulated three strikes under the PLRA and he is

therefore barred under 28 U.S.C. § 1915(g) from filing any actions IFP while he is a prisoner.

Because Plaintiff is barred under section 1915(g) from proceeding IFP unless he is “under

imminent danger of serious physical injury,” he must pay the filing fees for this action.

Plaintiff does not allege any facts suggesting that he was in imminent danger of serious

physical injury when he filed this case.1 Instead, he brings this action asserting the loss of his

money and property at multiple correction facilities in New York in 2004 and 2008.2

NOTICE AND OPPORTUNITY TO BE HEARD

A pro se litigant is generally entitled to notice and an opportunity to be heard before the

Court issues a final decision that is unfavorable to the litigant. See Snider v. Melindez, 199 F.3d

108, 113 (2d Cir. 1999) (requirement of notice and opportunity to be heard “plays an important

1 An imminent danger is not one “that has dissipated by the time a complaint is filed,”

Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009); rather, it must be one “existing at the

time the complaint is filed,” Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002).

2 On August 6, 2021, the Court received from Plaintiff a document titled “Permanent

Restraint Order,” in which he seeks injunctive relief with respect to his current detention. (See

ECF 12.) As this action does not have anything to do with Plaintiff’s current detention, the Court

denies Plaintiff’s request for a permanent restraining order.

The Court notes that Plaintiff has filed a petition for a writ of habeas corpus challenging

the constitutionality of his custody. See Vazquez-Diaz v. United States, ECF1:21-CV-6757, 1

(S.D.N.Y. filed Aug. 5, 2021). The Court’s denial of Plaintiff’s request for injunctive relief is

without prejudice to that action.

role in establishing the fairness and reliability” of the dismissal order, “avoids the risk that the

court may overlook valid answers to its perception of defects in the plaintiff’s case,” and

prevents unnecessary appeals and remands). The Court therefore grants Plaintiff leave to submit

a declaration showing that, while a prisoner, he has not filed three or more cases that were

dismissed as frivolous, malicious, or for failure to state a claim. Plaintiff must submit this

declaration within thirty days. If Plaintiff does not make this showing, or if he fails to respond to

this order, the Court will deny Plaintiff’s IFP application, dismiss the action without prejudice,

and bar Plaintiff from filing future actions IFP while he is a prisoner.3

CONCLUSION

The Court directs Plaintiff to show cause why the Court should not deny his IFP

application under the PLRA’s three strikes provision, 28 U.S.C. § 1915(g). Plaintiff must file a

declaration within thirty days explaining any reason why he should not be barred under the

PLRA. A declaration form is attached to this order for Plaintiff’s convenience. If Plaintiff does

not show cause, or if he fails to respond to this order, the Court will deny Plaintiff’s IFP

application, dismiss this action without prejudice, and bar Plaintiff under section 1915(g) from

filing future actions IFP while he is a prisoner.

The Court also denies Plaintiff’s request for a permanent restraining order (ECF 12), and

instructs the Clerk of Court to terminate all other pending matters in this case.

The Clerk of Court is further directed to mail a copy of this order to Plaintiff and note

service on the docket.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would

not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf.

3 Plaintiff is not barred from filing a new case by prepaying the filing fees.

Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates

good faith when he seeks review of a nonfrivolous issue).

SO ORDERED.

Dated: August 17, 2021

New York, New York

/s/ Laura Taylor Swain

LAURA TAYLOR SWAIN

Chief United States District Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Write the first and last name of each plaintiff or

petitioner.

Case No. CV

-against-

Write the first and last name of each defendant or

respondent.

DECLARATION

Briefly explain above the purpose of the declaration, for example, “in Opposition to Defendant’s

Motion for Summary Judgment,” or “in Response to Order to Show Cause.”

I, , declare under penalty of perjury that the

following facts are true and correct:

In the space below, describe any facts that are relevant to the motion or that respond to a court

order. You may also refer to and attach any relevant documents.

Attach additional pages and documents if necessary.

Executed on (date) Signature

Name Prison Identification # (if incarcerated)

Address City State Zip Code

Telephone Number (if available) E-mail Address (if available)