Crichlow v. Annucci

PS

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

___________________________________

KEVIN DAMION CRICHLOW,

Plaintiff, DECISION AND ORDER

v. 17-CV-6351 EAW

ANTHONY ANNUCCI, et al.,

Defendants.

___________________________________

Pro se plaintiff Kevin Damion Crichlow (“Plaintiff”), an inmate confined at the Five

Points Correctional Facility (“Five Points”) filed this action seeking relief under 42 U.S.C.

§ 1983 based on alleged violations of his constitutional and federal rights by prison

officials. (Dkt. 1). Plaintiff submitted a motion for leave to proceed in forma pauperis,

which the Court granted. (Dkt. 10). The Court also directed Plaintiff to amend his

pleadings in a manner that conformed with Rules 8 and 10 of the Federal Rules of Civil

Procedure. (Id.). Plaintiff thereafter filed an Amended Complaint. (Dkt. 18).

For the reasons stated below, the Court now sua sponte revokes Plaintiff’s in forma

pauperis status. This action will be dismissed without prejudice unless Plaintiff pays the

filing and administrative fees ($400.00 total) within 30 days of entry of this Order.

DISCUSSION

I. In Forma Pauperis Status and the “Three-Strikes” Rule

Because Plaintiff is a prisoner, this action is governed by 28 U.S.C. § 1915.

Pursuant to § 1915(g):

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).

Where a plaintiff is granted leave to proceed as a poor person but has violated

§ 1915(g)’s three-strikes rule, a court may sua sponte revoke the plaintiff’s in forma

pauperis status. See Abreu v. Brown, 317 F. Supp. 3d 702, 706-07 (W.D.N.Y. 2018). “The

district court may rely on the relevant docket sheets if they indicate with sufficient clarity

that the prior suits were dismissed on the grounds that they were frivolous, malicious, or

failed to state a claim upon which relief may be granted.” Harris v. City of N.Y., 607 F.3d

18, 23-24 (2d Cir. 2010); see, e.g., Mason v. Nitti-Richmond, No. 09 Civ. 7307(JGK), 2010

WL 2595108, at *1 (S.D.N.Y. June 25, 2010) (“In the context of motions to revoke IFP

status, district courts routinely take judicial notice of docket sheets in order to resolve the

question of how many ‘strikes’ the plaintiff may have for purposes of § 1915(g).”).

II. Revocation of In Forma Pauperis Status

On January 7, 2019, this Court sua sponte revoked Plaintiff’s in forma pauperis

status in two unrelated pending actions on the ground that he had the following four prior

actions dismissed for being frivolous, malicious, or failing to state a claim:

(1) Crichlow v. Butchen, No. 1:09-CV-4398-ARR-LB, Dkt. 12 (E.D.N.Y.

April 8, 2011) (dismissing complaint pursuant to 28 U.S.C. § 1915A

following Plaintiff’s failure to amend his pleadings to state a claim upon

which relief could be granted);

(2) Crichlow v. Fischer, No. 1:11-cv-00883-KBF, Dkt. 28 (S.D.N.Y. Dec.

22, 2011) (dismissing complaint pursuant to 28 U.S.C. § 1915A following

Plaintiff’s failure to amend his pleadings to comply with the requirements of

Fed. R. Civ. P. 8(a) despite having been given three opportunities to do so1);

(3) Crichlow v. Fischer, No. 12-1454, Dkt. 22 (2d Cir. Aug. 15, 2012)

(dismissing Plaintiff’s appeal because it “lack[ed] an arguable basis in law

or fact”);

(4) Crichlow v. Crichlow, No. 1:12-cv-08932-LAP, Dkt. 5 (S.D.N.Y. Feb.

21, 2013) (dismissing complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)

for failure to state a cognizable claim).

See Crichlow v. Fischer, No. 6:15-cv-06252, Dkt. 299 (W.D.N.Y. January 7, 2019);

Crichlow v. Crowley, No. 6:15-cv-06587, Dkt. 32 (W.D.N.Y. January 7, 2019). Each of

these four strikes was accumulated prior to the commencement of the instant action.

In accordance with these findings, Plaintiff can maintain his in forma pauperis status

in the instant case only if he was in imminent danger of serious physical injury at the time

this action was commenced. See Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002).

“An imminent danger is not one that has dissipated by the time a complaint is filed; rather

it must be one 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).2

1 “[D]ismissals following the repeated violation of Rule 8(a)’s ‘short and plain

statement’ requirement, following leave to amend, are dismissals for failure to state a claim

under § 1915(g).” Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013); see also Paul v.

Marberry, 658 F.3d 702, 705 (7th Cir. 2011) (“[W]hen the plaintiff is told to amend his

unintelligible complaint and fails to do so, the proper ground of dismissal is . . . failure to

state a claim, one of the grounds in section 1915(g) for calling a strike against a prisoner

plaintiff.”).

2 Whether the “imminent danger” must exist at the time the initial complaint was filed

or whether it can arise at the time the complaint is amended has not been expressly resolved

by the Second Circuit. One district court has noted, however, that “at least some cases

Here, Plaintiff’s allegations relate to events that occurred at the Wende Correctional

Facility. However, by the time Plaintiff commenced this action, he had been moved to the

Five Points Correctional Facility, where he continues to be housed. (See Dkt. 1-4). The

Court accordingly finds that even a liberal reading of the pleadings does not suggest in any

way that Plaintiff was “under imminent danger of serious physical harm” within the

meaning of § 1915(g) at the time he filed either the original Complaint or the Amended

Complaint. See Abreu v. Travers, No. 9:15-CV-0540 MAD, 2015 WL 10741194, at *7

(N.D.N.Y. Sept. 14, 2015) (collecting cases holding that transfer to a different facility

demonstrates a lack of imminent danger based on conduct at previous facility). Therefore,

because Plaintiff incurred at least three prior strikes, and failed to allege the imminent

danger of serious physical harm, he is prohibited from proceeding as a poor person in this

case. His in forma pauperis status is hereby revoked. Plaintiff has 30 days to pay the

$400.00 filing and administrative fees.

CONCLUSION

For the reasons stated above, the Court sua sponte finds that Plaintiff had accrued

three strikes under 28 U.S.C. § 1915(g) prior to the commencement of this action.

Plaintiff’s in forma pauperis status is therefore REVOKED. Plaintiff has until 30 days

from the entry of this Order to pay the $400.00 in filing fees. If $400.00 is not paid by

have indicated that even when amended complaints are filed, the imminent danger must

have existed at the time the initial complaint is filed.” Antrobus v. Dapecevic, No. 17-CV-

5840 (KMK), 2018 WL 3242272, at *4 (S.D.N.Y. July 3, 2018) (citing Harris v. City of

New York, 607 F.3d 18, 24 (2d Cir. 2010)). Therefore, for the sake of completeness, the

Court has also considered the allegations contained in Plaintiff’s Amended Complaint

while assessing whether the “imminent danger” exception applies.

that date, Plaintiff’s claims shall be dismissed without prejudice, and the Clerk of Court

shall terminate this action without further order of the Court.

The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from

this Order would not be taken in good faith and leave to appeal to the Court of Appeals as

a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests

to proceed on appeal in forma pauperis should be directed on motion to the United States

Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules

of Appellate Procedure.

SO ORDERED.

________________________________

ELIZABETH A. WOLFORD

United States District Judge

Dated: April 21, 2020

Rochester, New York