Jean-Louis v. Board of Education

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

JOE W. JEAN-LOUIS,

Plaintiff,

24-CV-3755 (LTS)

-against-

ORDER OF DISMISSAL UNDER

28 U.S.C. § 1915(g)

BOARD OF EDUCATION

Defendant.

LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff, who is currently detained at the North Infirmary Command on Rikers Island,

brings this action pro se. Because the complaint was not accompanied by the $405.00 in fees

required to file a civil action, the Court assumes that Plaintiff is seeking to proceed in forma

pauperis (“IFP”). Plaintiff is barred, however, from filing any federal civil action IFP while he is

a prisoner. See Jean-Louis v. Mayor City of New York, ECF 1:23-CV-4286, 2 (S.D.N.Y. May 25,

2023) (recognizing Plaintiff as barred under 28 U.S.C. § 1915(g) and listing his “strikes”); Jean-

Louis v. Onafer Nuclear Power Plant, No. 2:12-CV-1071, 2 (C.D. Cal. Feb. 22, 2012) (same).

Those decisions relied on the “three-strikes” provision of the Prison Litigation Reform Act

(“PLRA”), 28 U.S.C. § 1915(g), which provides that:

[i]n no event shall a prisoner bring a civil action . . . [IFP] 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.

Although Plaintiff has filed this new action seeking IFP status, his complaint does not

show that he is in imminent danger of serious physical injury.1 Instead, Plaintiff appears to be

1 An imminent danger is one “existing at the time the complaint is filed.” Malik v.

McGinnis, 293 F.3d 559, 563 (2d Cir. 2002). A danger “that has dissipated by the time complaint

is filed” is not sufficient. Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009).

asserting claims against the New York City Department of Education arising from their alleged

negligence in failing to build underground nuclear fallout shelters in the City’s elementary

schools. (See ECF 1, at 1.) Plaintiff is therefore barred, under Section 1915(g), from bringing this

action IFP.

CONCLUSION

The Court denies Plaintiff’s request to proceed IFP, and dismisses the complaint without

prejudice under the PLRA’s “three-strikes” filing bar.2 See 28 U.S.C. § 1915(g). Plaintiff remains

barred, under Section 1915(g), from filing any future federal civil action IFP while he is a

prisoner, unless he is under imminent threat of serious physical injury.3 Id.

The Court certifies, pursuant to 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.

See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

The Court directs the Clerk of Court to enter judgment in this action.

SO ORDERED.

Dated: May 20, 2024

New York, New York

/s/ Laura Taylor Swain

LAURA TAYLOR SWAIN

Chief United States District Judge

2 Plaintiff may commence a new federal civil action by paying the fees to bring that

action. 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

civil actions (even if the filing fees are 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).