Bradshaw v. Piccolo

PS

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

___________________________________

JAY BRADSHAW,

Plaintiff,

DECISION AND ORDER

-v-

6:21-CV-6050 EAW

PAUL PICCOLO, GREGORY

STACHOWSKI, II, TODD BENTLEY, JR.,

JAMES CIULLA, JONATHON SPENCE,

JAMES TAYLOR, CHRISTOPHER

CLARK, JOSEPH CLATE, JOHN DOE,

STEVE POST, CHARLES REINHART,

Defendants.

___________________________________

Pro se Plaintiff Jay Bradshaw, a prisoner currently confined in the Southport

Correctional Facility, has filed a complaint asserting claims under 42 U.S.C. § 1983. Dkt.

1. He also has submitted a Motion to proceed in forma pauperis, Dkt. 2, and a Motion for

injunctive relief, Dkt. 3. For the reasons explained below, Plaintiff’s Motion to proceed in

forma pauperis (“IFP”) is denied, and the complaint will be dismissed without prejudice

unless Plaintiff pays the filing and administrative fees of $402.00 as directed below.

Further, Plaintiff’s Motion for injunctive relief is denied.

DISCUSSION

I. Three “Strikes” Rule

A “prisoner,” see 28 U.S.C. § 1915(h),1 who 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 . . .,” may not proceed IFP “unless the prisoner is under imminent danger of

serious physical injury.” Id. § 1915(g). In other words, when a prisoner has garnered

three “strikes,” as they are commonly known, the motion for IFP status must be denied

unless the plaintiff has asserted claims which indicate that he is in imminent danger of

serious physical injury. In that regard, the Court must determine whether the plaintiff was

in imminent danger at the time of the filing of the complaint. Malik v. McGinnis, 293 F.3d

559, 562-63 (2d Cir. 2002).

Here, Plaintiff garnered three strikes before he filed the instant complaint on

January 19, 2021. On June 17, 2019, the United States District Court, Southern District

of New York revoked Plaintiff’s IFP status and dismissed his complaint upon finding that

he had three strikes and had not made a claim of being in imminent danger of serious

physical injury. Bradshaw v. City of New York, No. 18 CIV. 8215 (ER), 2019 WL 2502036,

at *2-3 (S.D.N.Y. June 17, 2019). Accordingly, pursuant to the mandate of 28 U.S.C.

§ 1915(g), Plaintiff's Motion for IFP must be denied unless he has plausibly asserted that

he is under imminent danger of serious physical injury.

1 “Prisoner” is defined as “any person incarcerated or detained in any facility who is accused

of, convicted of, sentenced for . . . violations of criminal law or the terms and conditions of parole,

probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915(h).

II. Imminent Danger of Serious Physical Injury

The Second Circuit has instructed that “[a]n 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.” See Chavis v. Chappius, 618 F.3d 162, 169 (2d Cir. 2010) (internal

quotations and citations omitted); see also Akassy v. Hardy, 887 F.3d 91, 96 (2d Cir.

2018) (explaining that “it is not sufficient to allege that ‘harms . . . had already occurred’”)

(quoting Malik, 293 F.3d at 562-63).

While § 1915(g) presents “only a threshold procedural question,” which does not

require “an overly detailed inquiry into . . . the allegations,” there must still be a serious

physical injury feared. See Chavis, 618 F.3d at 169 (quoting Andrews v. Cervantes, 493

F.3d 1047, 1055 (9th Cir. 2007)). Further, there must “be a nexus between the imminent

danger a three-strikes prisoner alleges . . . and the legal claims asserted in his complaint.”

Akassy, 887 F.3d at 97 (quoting Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009)).

To assess whether the proper nexus exists, courts look to “(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.” Pettus, 554 F.3d at 298-99.

In the case at bar, Plaintiff asserts that he is, and was when the complaint was

filed, in imminent danger of physical injury. Plaintiff alleges that since his arrival at

Southport Correctional Facility on October 4, 2020, Defendants Bentley, Taylor, Cuilla,

Spence, Clark, Crate, and Putney repeatedly shout out Plaintiff’s name, cell location and

the details of their conversations with him. Dkt. 1 at 2-4. These Defendants have also

repeatedly shouted while walking the gallery, so that other prisoners can hear, that

“Bradshaw is a Rapo,” or that “Bradshaw is a pediphiler.” Id. at 3-4. Plaintiff told

Defendant Reinhart about these events and that they have “resulted in harassment and

threats by other prisoners,” and also have created a hostile and/or potentially dangerous

environment for Plaintiff at Southport, or at any facility to which he may be transferred.

Id. at 4. Plaintiff further alleges that Defendants have provided some of his personal

information to inmates so that they can look up Plaintiff’s criminal case and harass or

threaten him with violence. Id. at 5. An inmate named “Jackson” spit on Plaintiff, and

prisoners have threatened to throw feces on Plaintiff and to attack him during congregate

recreation, all in the presence of correctional officers who have refused to report or take

measures to prevent such actions. Id. In support of his claim that these actions are an

imminent risk to his safety, Plaintiff alleges that “[u]pon information and belief, numerous

prisoners suffered serious injuries after being gang assaulted during programs and

congregate (even while [in] handcuffs).” Id. Plaintiff filed a grievance, putting Defendant

Piccolo and Post “on notice of the reckless conduct of the officers . . . but they failed to

take disciplinary action against them or otherwise . . . control their behavior.” Id. Plaintiff

has also been unable to sleep since he was moved to a cell near the back door, which

“makes a loud popping sound (like a gunshot),” every time the door is unlocked. Id. at 6.

Plaintiff states that he believes he “is in substantial risk of harm of his health and safety,”

and “is in imminent danger and . . . in extreme fear for his safety.” Id. at 6, 8.

To fall within the imminent danger exception, the danger must be specific in nature,

and amount to more than just fear that a physical attack could occur at some point in the

future. See Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004) (plaintiff must

present “specific fact allegations . . . of a pattern of misconduct evidencing the likelihood

of imminent serious physical injury”); Antrobus v. Dapecevic, No. 17-CV-5840 (KMK),

2018 WL 3242272, at *11-12 (S.D.N.Y. July 3, 2018) (“[A]ll of Plaintiff's allegations

regarding the threats he received once he arrived at Great Meadow are conclusive and

speculative. Plaintiff merely uses the word ‘threaten’ without specifying who threatened

him, what the threat entailed, and how he knew it was related to a call from Green

Haven—let alone who made the calls from Green Haven. . . . The Court need not accept

these conclusory, self-serving allegations as true, nor can it invent factual allegations that

[Plaintiff] has not pled.” (alteration in original) (quotation and citation omitted)); Pettus v.

Mangano, No. 05–CV–1834 (RJD), 2005 WL 1123761, at *1 (E.D.N.Y. May 9, 2005)

(“Plaintiff does not allege that he faces any specific danger at Elmira Correctional Facility.

Rather, he speculates that he, like any other inmate at the facility, faces potential danger

at the hands of other inmates. Were this Court to hold that such speculation is sufficient

to satisfy the ‘imminent danger’ requirement, this Court would effectively create a blanket

exception to the ‘three strikes' rule for all inmates of maximum security prisons”).

Plaintiff has failed to allege specific facts plausibly suggesting that he was under

imminent danger of serious physical injury at the time he filed his complaint. Plaintiff

alleges that the conduct forming the basis for his complaint began on October 4, 2020,

but he did not file his complaint until over three months later on January 19, 2021, which

suggests that any risk of harm from the alleged conduct was not “imminent.” Further,

Plaintiff’s allegations lack the specificity required to demonstrate that he was under

imminent danger of serious physical injury. For example, Plaintiff’s allegations relating to

the imminent danger he faces are based merely on his fear that he may be attacked and

sustain a serious injury because in the past prisoners have suffered serious injuries after

being gang assaulted (see, e.g., Dkt. 1 at 5 (“Upon information and belief, numerous

prisoners suffered serious injuries after being gang assaulted during programs and

congregate (even while [in] handcuffs.”)), and his allegations that he has been threatened

are conclusory and lack additional detail, such as who made the threats and when they

occurred. Moreover, where any specificity is provided (such as the allegation about being

spit on), it does not rise to the level of plausibly alleging imminent danger of serious

physical injury. Accordingly, Plaintiff has not made a sufficient showing to qualify for an

exception to the three strikes rule. Plaintiff’s Motion to proceed in forma pauperis is

denied, and the complaint will be dismissed unless Plaintiff pays the filing and

administrative fees of $402.00.

CONCLUSION

Plaintiff’s Motion to proceed in forma pauperis status is DENIED. Plaintiff has 45

days from the issuance of this Order to pay the $402.00 filing fees. If the filing fees are

not paid by that date, the complaint shall be DISMISSED without prejudice, and the Clerk

of Court shall terminate this action without further order of this Court.

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 leave to appeal to the Court of Appeals as a

poor person is denied. See Coppedge v. United States, 369 U.S. 438 (1962). Requests

to proceed on appeal as a poor person 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 8, 2021

Rochester, NY