Abreu v. Farley

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UNITED STATES DISTRICT COURT NOV 25 2019

WESTERN DISTRICT OF NEW YORK Lig □□

Wes -LOEWENGUTH □□ wi

TO ERN DISTRICTS

CARLOS ABREU,

DECISION AND ORDER

Plaintiff,

V. 6:11-CV-06251 EAW

ERIC FARLEY, ET AL.,

Defendants.

INTRODUCTION

By Decision and Order filed on March 15, 2019 (the “March Decision’) (Dkt. 121),

this Court granted in part and denied in part Defendants’ motion for partial summary

judgment and held Defendants’ motion to revoke Plaintiff's in forma pauperis (“IFP”)

status in abeyance pending the Second Circuit’s decision in Shepherd v. Annucci, No. 17-

2261 (2d Cir. July 21, 2017). On April 15, 2019, the Second Circuit issued its decision in

Shepherd v. Annucci, 921 F.3d 89 (2d Cir. 2019). Both sides have submitted additional

briefing regarding Shepherd’s impact on the disposition of Defendants’ revocation motion.

(See Dkt. 125; Dkt. 129; see also Dkt. 131). For the reasons that follow, Defendants’

motion to revoke Plaintiff's IFP status (Dkt. 59) is granted, and Plaintiff's IFP status is

hereby revoked.

BACKGROUND

The factual background and procedural history relevant to this motion are set forth

in detail in the Court’s March Decision, with which familiarity is assumed. (Dkt. 121).

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The Court provides only a brief summary, as well as additional background information as

relevant to this motion.

Plaintiff Carlos Abreu (“Plaintiff”) commenced this action pursuant to 42 U.S.C.

§ 1983, alleging constitutional violations arising out of his incarceration at the Five Points

Correctional Facility (“Five Points”). (Dkt. 1). After this Court’s initial screening of

Plaintiff's first complaint, the Court granted Plaintiff leave to proceed IFP. (Dkt. 3). Soon

thereafter, Plaintiff was appointed pro bono counsel to assist in the prosecution of this

action. (See Dkt. 9). Plaintiff subsequently filed voluminous pleadings, alleging numerous

grounds for which he believes he is entitled to relief against an array of individuals.

On March 15, 2019, this Court issued the March Decision, granting in part and

denying in part Defendants’ motion for partial summary judgment. (Dkt. 121). Plaintiffs

§ 1983 excessive use of force and related failure to intervene claims, Eighth Amendment

conditions-of-confinement claims for unlawful prison cell illumination, and common law

causes of action survived summary judgment as against a number of the named defendants

as more specifically outlined in that decision.

The Court also held Defendants’ motion to revoke Plaintiff's IFP status in abeyance

pending the Second Circuit’s decision in Shepherd v. Annucci, No. 17-2261 (2d Cir. July

21, 2017). In doing so, the Court identified numerous cases in which a court had “revoked

the IFP status of a three-strikes litigant when the defendant challenges the court’s

preliminary finding that the litigant is entitled to the imminent danger exception, using

evidence outside the four corners of the complaint to refute that preliminary finding.” (Dkt.

121 at 9-10). Defendants contend that the same conclusion should be reached here. (See,

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e.g., Dkt. 59-2 at 5-6). However, because the Shepherd case was likely to address the law

on this very issue, the Court declined to rule upon Defendants’ revocation motion until the

Second Circuit had issued its decision.

On April 15, 2019, the Second Circuit decided Shepherd v. Annucci, 921 F.3d 89

(2d Cir. 2019), holding that “courts may reexamine a provisional determination that a

complainant is in ‘imminent danger of serious physical injury’ when, after being served

with the complaint, a defendant challenges that determination.” Jd. at 95. The Shepherd

court also confirmed that a court may conduct a “narrow evidentiary inquiry” when

reexamining an imminent danger determination. Jd. at 95-96.

This Court subsequently requested both sides to submit supplemental briefing as to

what impact, if any, Shepherd had on the disposition of Defendants’ pending revocation

motion. (Dkt. 122). Both sides have since filed additional submissions. (Dkt. 125; Dkt.

129; see Dkt. 131').

In the meantime, it came to the Court’s attention that Plaintiff was released from

state custody and deported. The Court conducted a status conference with counsel on

October 2, 2019, and it was agreed that it would be beneficial to conduct a telephone call

with Plaintiff to explore how he intended to continue to litigate this matter, now that he

was barred from entry into this Country. (Dkt. 134). The Court arranged for such a

conference to be held on October 25, 2019, and also arranged for an interpreter to be present

at the Court’s expense. However, Plaintiff did not appear telephonically for the conference

| Defendants filed a request to submit an attached reply brief (Dkt. 131), which the

Court hereby grants.

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and there was no answer at the telephone number that his counsel repeatedly dialed in an

attempt to contact Plaintiff for the conference. (Dkt. 136). Because of the Court’s decision

concerning Plaintiff's IFP status, it does not, at this time, reach any conclusion on whether

Plaintiff's deportation and failure to participate in a Court-scheduled status conference

necessitates appropriate action, including dismissal of this action.

DISCUSSION

I. The Three Strikes Rule and Imminent Danger Exception

A party commencing a civil action in this Court ordinarily must pay a $350.00 filing

fee, as well as a $50.00 administrative fee. See 28 U.S.C. § 1914. Of course, the Court

may grant a party leave to proceed IFP if it determines that the party is unable to pay the

filing fee. See id. at § 1915. Nonetheless, not all litigants may be granted leave to proceed

IFP. As set forth in 28 U.S.C. § 1915(g), the “three strikes” provision prevents prisoners

from proceeding IFP if they have brought three or more lawsuits that have been dismissed

as frivolous or for failure to state a claim:

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.

Id. at § 1915(g).

Thus, under that statute, a prisoner with three strikes may proceed IFP only if he can

show that he is “under imminent danger of serious physical injury.” Jd. “An imminent

danger is not one that has dissipated by the time a complaint is filed; rather it must be one

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existing at the time the complaint is filed.” Chavis v. Chappius, 618 F.3d 162, 169 (2d Cir.

2010) (internal quotation marks and citation omitted).

The Second Circuit has instructed that, when determining whether a prisoner has

shown an imminent danger, a court should “not make an overly detailed inquiry into

whether the allegations qualify for the exception, because § 1915(g) concerns only a

threshold procedural question.” Jd. (internal quotation marks omitted). That instruction

suggests that a court should consider only the allegations in the complaint when

considering whether the imminent danger exception applies, although the Second Circuit

did not specifically limit the imminent danger review to the four corners of the complaint.

See id.; see also Abreu v. Lira, No. 9:12-CV-1385 (NAM/DEP), 2014 WL 4966911, at *2

(N.D.N.Y. Sept. 30, 2014), adopting report and recommendation, No. 9:12-CV-1385

(NAM/DEP) (N.D.N.Y. Apr. 11, 2014).

The Second Circuit has since clarified that district courts “may reexamine a

provisional determination that a complainant is in ‘imminent danger of serious physical

injury’ when, after being served with the complaint, a defendant challenges that

determination,” and conduct a “narrow evidentiary inquiry” into the legitimacy of the

plaintiffs fear of imminent danger. Shepherd, 921 F.3d at 94-95. The Shepherd court

explained that to hold “otherwise would allow prisoner-litigants to continue proceeding

IFP where an assertion of imminent danger is made—even if defendants had

‘incontrovertible proof that rebutted those allegations.’” Jd. at 95 (quoting Taylor v.

Watkins, 623 F.3d 483, 485 (7th Cir. 2010)); accord Chavis, 618 F.3d at 170 (“A court

may find that a complaint does not satisfy the ‘imminent danger’ exception if the

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complainant’s claims of imminent danger are conclusory or ridiculous.” (quotation and

citation omitted)). Accordingly, the Second Circuit agreed with the numerous other courts

that have revoked the IFP status of a three-strikes litigant when a defendant challenges the

preliminary finding that the litigant is entitled to the imminent danger exception. See Abreu

v. Brown, 317 F. Supp. 3d 702, 705 (W.D.N.Y. 2018) (“The Court agrees with those courts

that it may look beyond the complaint when considering a defendant’s challenge to the

preliminary finding that a three-strikes litigant is entitled to the imminent danger

exception.”); Tafari v. Baker, No. 6:16-cv-06472(MAT), 2017 WL 1406274, at *2

(W.D.N.Y. Apr. 20, 2017) (collecting cases stating the same); Bernier v. Koenigsmann,

No. 15-CV-209A, 2017 WL 603217, at *4 (W.D.N.Y. Feb. 15, 2017) (“Although courts

assessing imminent danger should not make an overly detailed inquiry, they are allowed to

look at information outside the four corners of a complaint.”); Green v. Venettozzi, No. 14-

CV-1215 (BKS/CFH), 2016 WL 6902545, at *3 (N.D.N.Y. Oct. 31, 2016) (“To refute a

preliminary finding with facts that satisfy the imminent danger exception, the Court may

look outside the four corners of the complaint.”), report and recommendation adopted,

2016 WL 6902180 (N.D.N.Y. Nov. 23, 2016); Abreu v. Lira, 2014 WL 4966911, at *2 (“In

reviewing the issues surrounding plaintiff's claim that at the time he filed the complaint,

he was facing imminent danger of serious physical injury, the Court agrees . . . that it is

appropriate for the Court to review evidence outside the allegations of the complaint upon

defendants’ challenge to plaintiff's IFP status.”); Jackson v. Jin, No. 12-CV-6445-FPG,

2014 WL 1323211, at *1 (W.D.N.Y. Mar. 31, 2014) (“In determining whether the

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imminent danger exception applies, the Court may consider more recent medical

evidence.”).

Plaintiff agrees that “the Shepherd decision confirmed that district courts may make

a limited review of materials outside the complaint in determining whether to revoke IFP

status.” (Dkt. 129 at 4). However, Plaintiff emphasizes that this “inquiry must be narrow,

as the three-strikes rule concerns only a threshold procedural question.” (Jd.); see

Shepherd, 921 F.3d at 96 (“[A] narrow evidentiary challenge to a provisional determination

that a prisoner is in imminent danger of serious physical injury should not metastasize into

‘a full-scale merits review.’” (quoting Taylor, 623 F.3d at 486)). As such, Plaintiff

contends that Shepherd is factually distinguishable because Plaintiff has alleged a “pattern

of assault” and “threats of continuing violent assault.” (Dkt. 129 at 8; see id. at 8-12).

By contrast, Defendants contend that Shepherd “explicitly found that it was not error

to revoke an inmate’s pauper status where his own medical records and the testimony of

qualified medical staff rebutted his claims of imminent danger.” (Dkt. 125 at 2).

Defendants argue that Plaintiff's own medical records and the declarations of the Five

Points medical personnel directly rebut Plaintiff's fear of imminent danger. (/d. at 2-4).

Defendants also argue that several of the claims asserted by the Shepherd plaintiff are

similar to Plaintiffs contentions here, further supporting revocation of Plaintiffs IFP

status. (See id. at 3-4).

Having considered the parties’ arguments, the Court now turns to conduct a

“narrow” review of Defendants’ proffered evidence—consisting of the declarations of Five

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Points corrections and medical staff and Plaintiffs medical records—to determine whether

the Court should revoke its preliminary finding that the imminent danger exception applies.

Il. = Plaintiff_is_ a “Three-Strikes Litigant” and the “Imminent Danger”

Exception Does Not Apply

The Court previously determined that Plaintiff was a three-strikes litigant because

at least four of Plaintiff's prior actions or appeals have been dismissed as frivolous or for

failure to state a claim. Plaintiffs strikes include at least the following: (1) Abreu v.

Disability Advocates, Inc., No. 1:09-CV-06306-LAP (S.D.N.Y. July 15, 2009) (dismissing

the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)); (2) Abreu v. Disability Advocates,

Inc., No. 09-CV-3268, Mandate (2d Cir. Oct. 30, 2009) (dismissing appeal because it

lacked an arguable basis in law or fact); (3) Abreu v. Supreme Court of Bronx Cty., No.

1:10-CV-01310-LAP, Judgment (S.D.N.Y. Feb. 18, 2010) (dismissing complaint pursuant

to 28 U.S.C. § 1915(e)(2)(B)Gi)); and (4) Abreu v. Supreme Court of Bronx Cty., No. 10-

1130 (2d Cir. Aug. 11, 2010) (dismissing appeal because it lacked an arguable basis in law

or fact).

However, Plaintiff argues that his IFP status should not be revoked pursuant to the

three-strikes rule “because his situation fits within the exception built into the statute’s bar

for ‘imminent danger of serious physical injury.’” (Dkt. 93 at 25). The imminent danger

exception is intended “as an escape hatch for genuine emergencies only.” Lewis v.

Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). “While the term ‘serious physical injury’ as

utilized in section 1915(g) is not concretely defined, it has been construed by courts as

encompassing a ‘disease that could result in serious harm or even death[.]’” Jackson, 2014

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WL 1323211, at *1 (quoting lbrahim v. District of Columbia, 463 F.3d 3, 7 (D.C. Cir.

2006)). “The imminent danger an inmate faces, moreover, must be real, and not merely

speculative or hypothetical.” Welch v. Charlan, No. 9:06-CV-0061 (GTS/DEP), 2008 WL

5382353, at *7 (N.D.N.Y. Dec. 16, 2008). As noted above, “[t]o revisit a preliminary

finding that a three-strikes plaintiff satisfies the imminent danger exception, the court may

look outside the four corners of the complaint.” Tafari, 2017 WL 1406274, at *2; see

Shepherd, 921 F.3d at 94-95,

A plaintiff seeking to benefit from the imminent endangerment exception—which,

as discussed above, is reserved “as an escape hatch for genuine emergencies only,” Lewis,

279 F.3d at 531—has the burden of establishing that he is in imminent danger of serious

physical injury to successfully oppose the revocation of his IFP status. See Coffman v.

Tsali, No. 6:18CV186, 2018 WL 4502566, at *1 (E.D. Tex. Sept. 19, 2018) (“The burden

is upon the plaintiff to show that he is in imminent danger of serious physical injury at the

time of the filing of the complaint through specific facts rather than conclusory

allegations.”); Davis v. County of Allegheny, No. CV 18-450, 2018 WL 2122882, at *1

(W.D. Pa. Apr. 19, 2018) (“A plaintiff who has three strikes, bears the burden of showing

that he is in ‘imminent danger of serious physical injury.’”), report and recommendation

adopted, 2018 WL 2121605 (W.D. Pa. May 8, 2018); Taylor v. Watkins, No. CIV.10-4-

GPM, 2010 WL 1963128, at *2 (S.D. II. May 17, 2010) (“Defendants bear the burden of

producing evidence to preclude a prisoner from filing in forma pauperis, and once that .

evidence is introduced, the burden shifts to the plaintiff to show that he is actually in

imminent danger of serious physical harm. Defendants’ burden is satisfied by the existence

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of the three strikes against Plaintiff. Plaintiff now bears the burden of showing he is in

imminent danger.” (quoting Brown v. City of Philadelphia, Civil Actions Nos. 05-4160,

06-2496, 06-5408, 08-3369, 2009 WL 1011966, at *10 (E.D. Pa. Apr. 14, 2009))); Crane

v. Hatton, No. C 06-06910 JF (PR), 2009 WL 3112077, at *2 (N.D. Cal. Sept. 23, 2009)

(“Plaintiff has the burden of proving that he is in imminent danger of serious physical

injury.”); accord Fuller v. Myers, 123 F. App’x 365, 366 (10th Cir. 2005) (“To meet his

burden under § 1915(g), the inmate must provide ‘specific fact allegations of ongoing

serious physical injury, or a pattern of misconduct evidencing the likelihood of imminent

serious physical injury.”” (quoting Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.

2003))).

Plaintiff fails to meet his burden. In an attempt to satisfy the imminent danger

exception, Plaintiff relies on the eleven physical assaults he allegedly endured while housed

at Five Points. (See Dkt. 93 at 26). These alleged assaults occurred on March 30, 2010,

May 10, 2010, May 29, 2010, September 10, 2010, November 21, 2010, December 18,

2010, February 21, 2011, March 21, 2011, September 27, 2011, December 5, 2011, and

January 17, 2012. (d.; see Dkt. 46 at F¥ 122-23, 151, 164, 174, 212, 246, 302, 333; Dkt.

93-5 at 16; Dkt. 93-9 at 2-4). Nevertheless, a review of Defendants’ medical evidence

undermines the plausibility of Plaintiff's allegations. See Shepherd, 921 F.3d at 96.

For example, on March 30, 2010, Plaintiff alleges that correctional officers Barry

Countryman (“C.O. Countryman”) and Jacob Smith (“C.O. Smith”) “removed Plaintiff

from the sick-call room, [and] used violent and excessive force in smashing Plaintiff into

the floor face first,” before continuing to “physically and verbally assault[] Plaintiff while

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Plaintiff was on the floor.” (Dkt. 46 at J 123). Correctional officer Richard Cioffa (“C.O.

Cioffa’”), along with C.O. Countryman and C.O. Smith, “grabbed Plaintiff and violently

pushed him into a wall” while they transferred Plaintiff to a prison cell. (/d.). The

correctional officers also “tightened Plaintiffs handcuffs such that they cut Plaintiff's

wrists.” (/d.). Allegedly, correctional sergeants T. Barber (““Sgt. Barber”) and Richard

Goodliff (“Sgt. Goodliff”) “were present,” but they failed to intervene. (/d. at § 122).

Plaintiff's allegations are contradicted by his medical records. A review of

Plaintiff's medical progress note for March 30, 2010, indicates that he told medical staff

that he had been subjected to excessive force and was experiencing pain in his arm, face,

and wrist. (Dkt. 59-10 at 134). However, the medical evaluation notes reveal that Plaintiff

exhibited “no visible injuries,” no edema, and no redness upon examination. (/d.). Despite

raising similar subjective complaints the following day, Plaintiff again exhibited no signs

of swelling or deformity. (/d.).

Plaintiff further alleges that four correctional officers punched him and beat him

with sticks on May 10, 2010 (Dkt. 46 at J 151), but the medical progress note for May 11,

2010, indicates that Plaintiff had been previously observed “banging on [his] cell door”

and “punching” himself (Dkt. 59-10 at 127). Plaintiff’s medical examination revealed only

a “slightly red area” on his chest and arm. (/d.). This de minimis injury recorded by

medical personnel in no way reflects Plaintiffs assertion that four correctional officers

punched him and beat him with sticks. Similarly, Plaintiff alleges that Sgt. Barber and

nurse T. Carroll (“Nurse Carroll”) “verbally harassed him, threatened him with physical

assault, and physically assaulted him” while escorting him to the infirmary on May 29,

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2010. (Dkt. 46 at { 164). Again, the medical progress note for June 1, 2010, reveals no

signs of injury. (Dkt. 59-10 at 121).

On September 10, 2010, unidentified correctional officers at the Downstate

Correctional Facility (“Downstate”) allegedly “used force to place [Plaintiff] on the bus”

to transfer him back to Five Points, and then “Downstate staffs’ reports covered up this

incident.” (Dkt. 46 at { 174). Not only does Plaintiff fail to explain how any of the named

defendants in this action were involved in this alleged assault, but the medical progress

note dated September 10, 2010, reveals that Plaintiff “refused to be seen” by Five Points

medical staff, and it does not otherwise indicate that he suffered any bodily harm. (Dkt.

59-10 at 115).

Next, Plaintiff alleges that on November 21, 2010, nurse Kimberly Cheasman

(“Nurse Cheasman”) came to his cell and hit his hands and fingers with a bucket. (Dkt. 46

at 212). However, the medical progress note dated November 22, 2010, reveals that

Plaintiff could move his hands without difficulty. (Dkt. 59-10 at 110). Indeed, Plaintiff

refused to unwrap his hands to display any injuries and became angry and verbally

aggressive when asked to do so. (/d.). Plaintiff also alleges that Nurse Cheasman visited

his cell again on December 18, 2010, in order to physically assault him. (See Dkt. 46 at

§ 246). Plaintiff claims that she slammed the prison cell door hatch on his left arm when

he attempted to obtain his medications, and then she threatened to kill him. (/d.). The

medical progress note dated December 19, 2010, does not suggest that Plaintiff complained

about any pain in his arm, and instead reveals that he complained only of ear pain and some

throat soreness. (Dkt. 59-10 at 100).

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Plaintiff alleges that similar incidents occurred on February 21, 2011, and March

21,2011. On both occasions, nurse Annette Holm allegedly slammed the prison cell door’s

feeding hatch on Plaintiff's arm multiple times. (See Dkt. 46 at 302, 333). Although

Plaintiff apparently raised some complaints of pain in his right arm, his medical

examination conducted on February 23, 2011, revealed “no deformity,” “no edema,” and

“no visible injury” to his arm. (Dkt. 59-10 at 96). Additionally, the medical progress note

for March 21, 2011, did not indicate that Plaintiff complained of pain in his arm at all, and

it revealed that he had recently “refused” his prescription and was “described as being

physically active in a way which is inconsistent with being in significant pain.” (/d. at 91).

Lastly, Plaintiff alleges that he was physically assaulted by C.O. Countryman,

correctional sergeant Remy Babineaux, and correctional sergeant D. Gleason on September

27, 2011, December 5, 2011, and, with “other guards,” on January 17, 2012. (Dkt. 93-9 at

1). Those “other guards” included Sgt. Goodliff, “Sgt Haff,” Nurse Carroll, correctional

officer VanHorn, “C.O. G. Hinman,” “C.O. S. White,” “C.O. M. Jenkins,” “C.O. T.

Casper,” and “C.O. B. Schmitt.” (/d. at 3). During the January encounter, Plaintiff alleges

that the correctional officers beat him, tortured him, and raped him with a baton from 9:50

A.M. to 12:45 P.M. (See id. at 2-4). While a review of Plaintiff's medical records reveals

the presence of superficial injuries, the resulting medical findings fail to demonstrate the

presence of an imminent danger of serious physical injury.

For example, Plaintiff's September 27, 2011, medical progress note reveals that

Plaintiff became argumentative and physically threatening while in the sick-call room and

was then wrestled to the floor. (Dkt. 59-10 at 44). He did not appear to be in pain and

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exhibited full active and passive movement in both shoulders, elbows, and wrists. (/d.).

There appeared to be some red bruising on Plaintiffs shoulder and some soft tissue injuries

to his wrists, but there was no deep tenderness noted in Plaintiffs shoulder or any deformity

near his clavicle. (/d.).

The medical progress note recorded on December 6, 2011, discloses that a “red

area” and “superficial abrasions” were observed on Plaintiff's chest and back. (/d. at 22).

Although Plaintiff reported some tenderness to his chest, hips, shoulders, arms, wrists, and

outer right thigh, no evidence of any other injury was observed. (/d.). Plaintiff also

indicated that he was “vomiting blood” and that “blood [was] coming out [his] nose,” but

the medical staff observed “no blood” in Plaintiffs oral cavity. U/d. at 23). The following

day, Plaintiff again complained of pain to his limbs, chest, and abdomen, but when he was

offered medication, he “refused all meds” and was observed walking about without any

apparent distress. (/d. at 22).

Finally, the medical progress note recorded for January 17, 2012, indicates that

Plaintiff was discovered in his prison cell with a cloth around his neck and red marks on

his neck. (/d. at 5). When Plaintiff's “cuffs were removed[,] he attacked” the prison staff.

(Id.). Medical personnel observed “abrasions” on Plaintiff's face and ankle, two “red

marks” on his abdomen, and a scratch to his left foot. (/d.). Although an x-ray was ordered,

Plaintiff was initially “non-compliant.” (/d.). Plaintiff was able to move his fingers despite

complaints of pain, and there was no indication of any swelling in his fingers. (/d.).

Plaintiff also complained of pain to his right wrist, and the area around that wrist appeared

red and swollen—consistent with handcuff marks. (/d.). X-rays were eventually taken of

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Plaintiff's face and revealed only superficial soft tissue swelling with no evidence of

“intracranial hemorrhages or brain parenchymal contusion injuries,” or skull fractures.

(Dkt. 59-11 at 27-30).

The subsequent medical progress notes dated January 18, 2012, and January 19,

2012, indicate that while Plaintiff was prescribed pain medications for facial pain, he also

refused to take his morning medications. (Dkt. 59-10 at 3-4). Plaintiff's January 21, 2012,

medical note suggested that he sustained slight bruising to his ears and some swelling and

bruising to his eye lids. (V/d. at 3). Although the whites of Plaintiff's eyes were “bloody,”

there was no “evidence of trauma or foreign objects.” (/d.). Plaintiff's rectum also

appeared “slightly red,” but no excoriation or blood was noted and no “edema or

ecchymosis” was observed to his penis or scrotum. (/d.). The medical staff observed no

bruises to his scalp or his head. (/d.). □

As demonstrated above, Defendants’ medical evidence negates Plaintiff's

allegations of an imminent danger of serious physical injury. See Tafari, 2017 WL

1406274, at *3 (“Most importantly, [the p]laintiff’s allegations of daily constipation,

vomiting, blood in his urine, rectal bleeding, and stomach pain, are not borne out by the

medical records.”); Jackson, 2014 WL 1323211, at *2 (“Plaintiff's medical records bely

many of his contentions.”). In fact, the medical records amply demonstrate that Plaintiff

was prescribed pain medication on numerous occasions to quell any discomfort, even when

no injuries were observed. See Rieco v. Gilmore, No. 2:17-CV-0553, 2018 WL 700266, at

*2 (W.D. Pa. Feb. 5, 2018) (“[T]he records reflect that Plaintiff was seen in the medical

clinic numerous times . . . for skin abrasions and ulcers related to venous stasis for which

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he received medical treatment on numerous occasions.”), appeal dismissed, No. 18-1542,

2018 WL 4372135 (3d Cir. Aug. 24, 2018); Towner v. Rao, No. 12-CV-6633-FPG, 2014

WL 4745920, at *3 (W.D.N.Y. Sept. 23, 2014) (“[T]he record is replete with evidence that

DOCCS has treated him with medications for his pain during that time frame (albeit not to

his satisfaction).”). Furthermore, the imminent danger exception is not applicable simply

because Plaintiff may have complained of pain in several instances and was not prescribed

medication on any one given occasion. See Towner, 2014 WL 4745920, at *3 (“[J]t is

worth noting that courts considering allegations of discomfort or the lack of pain

medication have found them to not constitute an imminent danger.”); Cerilli v. Murphy,

No. 3:10-CV-421 SRU, 2010 WL 7865032, at *2 (D. Conn. Aug. 20, 2010) (“Allegation[s]

of pain and denial of pain medication have been held not to constitute an imminent danger

of serious physical injury.”’); Ortiz v. Quarterman, No. 2:08-CV-0172, 2008 WL 5024857,

at *3 (N.D. Tex. Nov. 21, 2008) (“At the time of filing, plaintiff's chief complaint

concerning his medical condition was that he had not received any medication for the pain

from his head, neck, shoulder, and back injuries. These allegations do not establish

plaintiff was in imminent danger of serious physical injury at the time of filing.”).

Indeed, Plaintiff's allegations of continued violence, harassment, and physical and

emotional trauma do not demonstrate an imminent danger of serious physical injury where

the medical records fail to reveal objective findings of serious harm and identify, at most,

only superficial injuries that do not suggest the severity necessary to invoke this exception.

See Denby v. Bosco, No. 6:15CV876, 2017 WL 1963629, at *4 (E.D. Tex. May 11, 2017)

(noting that the plaintiff “points to nothing in the medical records confirming the existence”

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of his alleged “swelling and infection of the rectum,” and the fact that he was “diagnosed

with bleeding hemorrhoids” did not place him in imminent danger of serious physical

injury), appeal dismissed, 719 F. App’x 405 (Sth Cir. 2018); Abreu v. Lira, 2014 WL

4966911, at *10 (rejecting the plaintiff's contention that he was in imminent danger of

serious physical injury where the “plaintiffs medical records in and around December 3,

2012, do not reflect any indication that plaintiff was ‘assaulted, beaten, and sexually

abused’ by correctional officers at Upstate”); Taylor, 2010 WL 1963128, at *3 n.1 (noting

that even if the court credited the occurrence of the alleged assault, “the injury alleged by

Taylor, some swelling on the back and sides of his head, is not sufficient to establish

imminent danger under 28 U.S.C. § 1915(g)”). In addition, a number of the medical

progress notes reveal that Plaintiff refused medication or treatment following several of the

alleged assaults, further indicating that his subjective complaints of pain were inconsistent

with the violent conduct alleged in the Second Amended Complaint (“SAC”) and his

supplemental papers. See Taylor, 2010 WL 1963128, at *3 (“The logical inference to be

drawn from Taylor’s refusal to be examined is that he knew that such an examination would

disclose no evidence of an injury.”).

The medical observations of “red marks,” “abrasions,” and “scratches” recorded in

some of the progress notes demonstrate the presence of superficial injuries that fall far short

of establishing an imminent danger of serious physical injury. See Bontemps v. Baker, No.

2:16-CV-2814-MCE-CMK, 2018 WL 4095922, at *2 (E.D. Cal. Aug. 28, 2018) (finding

that the force used in applying handcuffs, resulting in “pain in [the plaintiff's] wri[s]ts and

marks on his skin” did not create an imminent danger of serious physical injury); Shove v.

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McDonald, No. 14-CV-02903-JD, 2015 WL 5693730, at *3 (N.D. Cal. Sept. 29, 2015)

(“Nor do the allegations that the normal handcuffs cut his wrist or cause undue pressure

demonstrate possible serious physical injury.”); Porter v. Sauve, No. 9:12-CV-0138

(MAD/ATB), 2012 WL 12925230, at #3 (N.D.N.Y. Mar. 21, 2012) (finding allegations

that the plaintiff “experienced handcuffs that were tight, and/or a pat frisk that was

‘hard/rough’” insufficient to create an imminent danger of serious physical injury); see also

Ball v. Famiglio, 726 F.3d 448, 470 n.30 (3d Cir. 2013) (finding that a single incident

where “prison officials used mace to secure [the plaintiff] after she refused to answer direct

orders” did not support an assertion of imminent danger of serious physical injury); Abdul-

Akbar, 239 F.3d at 315 & n.1 (determining that the alleged use of pepper spray, repeated

acts of harassment, conspiracies to harm him, and “other forms of retaliation” did not

establish that the plaintiff was in imminent danger of serious physical injury). The medical

progress notes recorded after the incident allegedly taking place on January 17, 2012,

evince some notations suggestive of a possible physical assault. However, assuming that

Plaintiff was indeed assaulted on this occasion, the occurrence of just one assault—at least

one resulting in the medical observations recorded here—is insufficient to establish an

imminent danger of serious physical injury. See Taylor, 2010 WL 1963128, at *3 n.1.

Stated differently, Plaintiffs “medical records disclose no evidence of an injury consistent

with repeated assaults by correctional personnel as alleged” in his SAC and supplemental

pleadings. Jd. at *3; see generally Liner v. Fischer, No. 11 Civ. 6711 (PAC), 2014 WL

5438037, at *2 (S.D.N.Y. Oct. 27, 2014) (noting that the jury need not determine the

credibility of the defendants’ statements in “sworn affidavits and medical records” before

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the plaintiffs IFP status can be revoked); Kidd v. Thaler, No. 9:11cv18, 2011 WL 6714527,

at *8 (E.D. Tex. Aug. 26, 201 1) (“It should be noted that the courts have held that a prisoner

must allege specific facts showing that he is under imminent danger of serious physical

injury; general allegations not grounded in specific facts indicating that serious physical

injury is imminent are not sufficient to invoke the exception to § 1915(g).”’), report and

recommendation adopted, 2011 WL 6713728 (E.D. Tex. Dec. 21, 2011).

In sum, Defendants’ medical evidence demonstrates that reexamination of the

Court’s preliminary application of the imminent danger exception is warranted, and that

Plaintiff has not established his entitlement to this exception. Accordingly, the Court grants

Defendants’ motion to revoke Plaintiff's IFP status. (Dkt. 59). Plaintiff is required to pay

the $400.00 filing fee, with credit for any amounts previously collected from his prison

account, within 30 days of the date of this Decision and Order. If Plaintiff fails to pay the

full filing fee, his case will be dismissed without prejudice without further order of the

Court.

At this time, the Court does not address Plaintiffs continued representation by pro

bono counsel, other than to note that counsel was assigned because of Plaintiffs IFP status,

which is no longer the case. In addition, since Plaintiff failed to participate in the Court-

ordered status conference, it would appear that he is not cooperating with his assigned pro

bono counsel. Accordingly, Plaintiff's counsel may very well be entitled to an order

relieving them from this assignment, but the Court will not act in a sua sponte fashion in

that regard, and instead will address any such request if, in fact, a motion to withdraw is

filed.

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CONCLUSION

For the foregoing reasons, Defendants’ motion to revoke Plaintiff's IFP status (Dkt.

59) is granted, and Plaintiff's IFP status is hereby revoked. Plaintiff is required to pay the

$400.00 filing fee, with credit for any amounts previously collected from his prison

account, within 30 days of the date of this Decision and Order. If Plaintiff fails to pay the

full filing fee, his case will be dismissed without prejudice without further order of the

Court.

SO ORDERED.

ELIZABETHA. WOLFORD

United States District Judge

Dated: November 25, 2019

Rochester, New York

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