Oudekerk

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

NICHOLAS OUDEKERK,

Plaintiff, 9:26-CV-0497

(ECC/CBF)

v.

SGT. THOMAS, C.O. CRUM. C.O. MONDA,

Defendants.

APPEARANCES: OF COUNSEL:

NICHOLAS OUDEKERK

Plaintiff, pro se

15509

Warren County Correctional Facility

1400 State Route 9

Lake George, New York 12845

ELIZABTH C. COOMBE

United States District Judge

DECISION AND ORDER

I. INTRODUCTION

The Clerk has sent to the Court for review a pro se complaint filed by plaintiff Nicholas

Oudekerk ("plaintiff") pursuant to 42 U.S.C. § 1983 ("Section 1983"), asserting claims arising

out of his confinement in the custody of Warren County Correctional Facility as a pretrial

detainee. Dkt. No. 1, Complaint ("Compl.").1 Plaintiff, who is presently incarcerated at

1 Plaintiff previously filed a Section 1983 action against these defendants in this District. See Oudekerk v.

Thomas et al., No. 9:24-CV-0109 (ECC/CBF) (“Oudekerk I”). The case was ultimately dismissed without

prejudice because plaintiff successfully exhausted his claims after he commenced the 1983 action. See

generally Dkt. No. 53, Motion to Dismiss (seeking dismissal because the claim was unexhausted and failed to

state a claim upon which relief could be granted); Dkt. No. 76, Report Recommendation (granting motion to

dismiss in part, because the claims were unexhausted, and recommending that the dismissal be without

Warren County Correctional Facility, has not paid the statutory filing fee for this action and

seeks leave to proceed in forma pauperis ("IFP").2, 3 Dkt. No. 5, Second IFP Application.

II. IFP STATUS

Where a plaintiff seeks leave to proceed IFP, the Court must determine whether the

plaintiff has demonstrated sufficient economic need to proceed without prepaying, in full, the

Court’s filing fee of $405.00. Even if a plaintiff financially qualifies for IFP status, the Court

must also determine whether the "three strikes" provision of 28 U.S.C. § 1915(g) bars the

plaintiff from proceeding IFP and without prepayment of the filing fee. Section 1915(g)

provides as follows

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.

prejudice and with a right to refile a new action); Dkt. No. 79, Decision and Order (adopting the Report

Recommendation); Dkt. No. 80, Judgment. This case is that refiled action.

2 Over the past three years, plaintiff has filed eighteen other actions in this District. See Oudekerk v. Glens Falls

PD Officer Doe 1, No. 5:23-CV-0288 (BKS/TWD) (N.D.N.Y. filed Mar. 3, 2023); Oudekerk v. Bateholts, No. 5:23-

CV-0608 (LEK/TWD) (N.D.N.Y. filed May 19, 2023); Oudekerk v. Doe #1, No. 9:24-CV-0113 (DNH/MJK)

(N.D.N.Y. filed Jan. 23, 2024); Oudekerk v. Hearing Officer Doe, No. 9:24-CV-0111 (AMN/CFH) (N.D.N.Y. filed

Jan. 23, 2024); Oudekerk v. Curtis, No. 9:24-CV-0144 (GTS/DJS) (N.D.N.Y. filed Jan. 30, 2024); Oudekerk v.

Eldrige, No. 9:24-CV-0309 (FJS/CFH) (N.D.N.Y. filed Mar. 4, 2024); Oudekerk v. Lehoisky, No. 1:24-CV-0311

(AMN/TWD) (N.D.N.Y. filed Mar. 4, 2024); Oudekerk v. Springer, No. 9:24-CV-0310 (DNH/ML) (N.D.N.Y. filed

Mar. 4, 2024); Oudekerk v. Canale, No. 9:24-CV-0408 (LEK/DJS) (N.D.N.Y. filed Mar. 25, 2024); Oudekerk v.

Bolmen, No. 9:24-CV-0654 (GTS/ML) (N.D.N.Y. filed May 13, 2024); Oudekerk v. C.O. Doe, No. 9:25-CV-0371

(ECC/TWD) (N.D.N.Y. filed Mar. 25, 2025); Oudekerk v. Maille, No. 1:25-CV-0919 (GTS/PJE), (N.D.N.Y. filed

July 14, 2025); Oudekerk v. Green, No. 9:25-CV-1115 (BKS/TWD) (N.D.N.Y. filed Aug. 18, 2025); Oudekerk v.

Chiniak, No. 9:25-CV-1747 (AJB/MJK) (N.D.N.Y. filed Dec. 12, 2025); Oudekerk v. Warrington et al., No. 1:26-

CV-0485 (AMN/PJE) (N.D.N.Y. filed Mar. 25, 2026); Oudekerk v. Thomas, No. 9:26-CV-0497 (ECC/CBF)

(N.D.N.Y. filed Mar. 26, 2026); Oudekerk v. Gillingham et al., No. 9:26-CV-0826 (AMN/CBF), (N.D.N.Y. filed

Apr. 27, 2026); Oudekerk v. State Police Officer Doe, No. 1:26-CV-1194 (ECC/CBF) (N.D.N.Y. filed June 8,

2026); and Oudekerk v. State Police Officer Doe, No. 1:26-CV-1200 (AJB/DJS) (N.D.N.Y. June 9, 2026).

3 On March 27, 2026, the case was administratively closed due to petitioner's failure to properly commence it as

his IFP application was incomplete. Dkt. No. 2, IFP Application; Dkt. No. 4, Administrative Order. Petitioner

was given thirty (30) days to either (1) pay the statutory filing fee or (2) submit a complete, properly certified IFP

application. Dkt. No. 4 at 3. Petitioner timely filed a second IFP application, and the action was restored to the

Court’s active docket. Dkt. No. 5, Second IFP Application; Dkt. No. 6, Text Order (reopening case).

28 U.S.C. § 1915(g).

If the plaintiff is indigent and not barred by § 1915(g), the Court must also consider

whether the causes of action stated in the complaint are, inter alia, frivolous, or malicious, or

if they fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B); see

also 28 U.S.C. § 1915A(b)(1).

In this case, plaintiff has demonstrated economic need and has filed the inmate

authorization form required in the Northern District of New York. Dkt. No. 5, Second IFP

Application; Dkt. No. 3, Inmate Authorization Form. Thus, the Court must determine whether

plaintiff has "three strikes" and, if so, whether he is entitled to invoke the "imminent danger"

exception to that rule. See 28 U.S.C. § 1915(g).

A. Determination of "Strikes"

The Court has reviewed plaintiff's litigation history on the Federal Judiciary's Public

Access to Court Electronic Records ("PACER") Service. On the basis of that review, the

Court finds that, as of the date that plaintiff commenced this action, March 16, 2026,4 plaintiff

had acquired at least three strikes because he filed three previous civil actions while

incarcerated that were dismissed based on frivolousness, maliciousness, or failure to state a

claim upon which relief may be granted. See Oudekerk v. Curtis, No. 9:24-CV-0144

(GTS/DJS), Decision and Order, Dkt. No. 8 (N.D.N.Y. Apr. 16, 2024) (dismissing plaintiff's

amended complaint for failure to state a claim upon which relief could be granted in

accordance with 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)); 5 Oudekerk v. Hearing Officer

4 Under the prison “mailbox rule,” a petitioner's application is deemed filed on the date he delivers it to the

prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 270 (1988).

5 “A strike does accrue . . . if the plaintiff files an amended complaint and the amended complaint is dismissed

for an enumerated reason,” specifically that the amended complaint was dismissed as frivolous, malicious, or

Doe et al., No. 9:24-CV-0111 (AMN/CFH), Decision and Order, Dkt. No. 10 (N.D.N.Y. May

24, 2024) (dismissing plaintiff's amended complaint for failure to state a claim upon which

relief may be granted in accordance with 28 U.S.C. § 1915(e)(2)(B) and 1915A(b));6 and

Oudekerk v. Lehoisky, No. 1:24-CV-0311 (AMN/TWD), Memorandum-Decision and Order

(N.D.N.Y. Nov. 17, 2025) (granting defendant’s 12(b)(6) motion and ordering the complaint

dismissed with prejudice because plaintiff’s guilty plea and “subsequent conviction bar[] his

Fourth Amendment claim for false arrest as a matter of law.”).7

Thus, unless it appears that the "imminent danger" exception to the "three strikes" rule

is applicable in this action, plaintiff may not proceed IFP.

B. Applicability of the "Imminent Danger" Exception

Congress enacted the "imminent danger" exception as a "safety valve" to prevent

impending harms to prisoners otherwise barred from proceeding IFP. Malik v. McGinnis, 293

F.3d 559, 563 (2d Cir. 2002). "[F]or a prisoner to qualify for the imminent danger exception,

the danger must be present when he files his complaint—in other words, a three-strikes

litigant is not excepted from the filing fee if he alleges a danger that has dissipated by the

failing to state a claim. Cotton v. Noeth, 96 F.4th 249, 256 (2d Cir. 2024) (referencing 28 U.S.C. § 1915(g)).

Here, because plaintiff’s amended claim was dismissed for failing to state a claim, it constitutes a strike.

6 “A strike does accrue . . . if the plaintiff files an amended complaint and the amended complaint is dismissed

for an enumerated reason,” specifically that the amended complaint was dismissed as frivolous, malicious, or

failing to state a claim. Cotton v. Noeth, 96 F.4th 249, 256 (2d Cir. 2024) (referencing 28 U.S.C. § 1915(g)).

Here, because plaintiff’s amended claim was dismissed for failing to state a claim, it constitutes a strike.

7 The Second Circuit has explained that “[a] prior dismissal qualifies as a strike only where the entire action or

appeal was dismissed as frivolous, malicious, or for failure to state a claim. . . . Thus, a mixed dismissal, in

which claims are dismissed on both § 1915(g) and non-§ 1915(g) grounds, does not constitute a strike.

However, where a dismissal rests on several alternative grounds for one or more claims, it counts as a strike if

each claim brought in the lawsuit is dismissed on a basis that would independently justify a strike.” Kaminiski v.

Kennedy, No. 22-2084, 2024 WL 1664771, at *2 (2d Cir. Apr. 18, 2024) (internal quotation marks and citations

omitted) (emphasis in original). Here, plaintiff’s entire action was dismissed for his failure to state a claim upon

which relief could be granted, as the single claim that he chose to move forward with was ultimately determined

to be legally barred.

time a complaint is filed." Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009) (citation

omitted); see also Polanco v. Hopkins, 510 F.3d 152, 155 (2d Cir. 2007) (imminent danger

claims must be evaluated at the time the complaint is filed, rather than at the time of the

events alleged). In addition, "§ 1915(g) allows a three-strikes litigant to proceed [in forma

pauperis] only when there exists an adequate nexus between the claims he seeks to pursue

and the imminent danger he alleges." Pettus, 554 F.3d at 296. In deciding whether such a

nexus exists, the Second Circuit instructs the courts to consider "(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." Id. at 298-99. Both requirements must be met in order for the

three-strikes litigant to proceed IFP. Id.

"When determining whether a prisoner has qualified for the 'imminent danger'

exception, courts look at the non-conclusory allegations in the plaintiff’s complaint." Welch v.

Charlan, No. 06-CV-61, 2008 WL 5382353, at *1, n.2 (N.D.N.Y. Dec. 16, 2008); see also

Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) ("[A]ll [circuits] maintain a

singular focus on the facts alleged in the complaint in deciding whether a prisoner faced the

requisite harm.") (collecting cases). Where the plaintiff is proceeding pro se, his complaint

should be liberally construed and interpreted "to raise the strongest arguments that [it]

suggest[s]." Harris v. City of N.Y., 607 F.3d 18, 24 (2d Cir. 2010) (internal quotation marks

omitted). "[T]hough [a court] is obligated to draw the most favorable inferences that [a pro se

plaintiff’s] complaint supports, [the court] cannot invent factual allegations that [the plaintiff]

has not pled." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (citations omitted).

Thus, "[a] court may find that a complaint does not satisfy the 'imminent danger' exception if

the complainant's 'claims of imminent danger are conclusory or ridiculous.' " Id. (quoting

Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003)). Finally, "[t]he imminent danger

claimed by the inmate . . . must be real, and not merely speculative or hypothetical." Nelson

v. Nesmith, No. 06-CV-1177 (TJM), 2008 WL 3836387, at *5 (N.D.N.Y. Aug. 13, 2008)

(citation omitted).

Petitioner initially brought this challenge in 2024, when he filed Oudekerk I, and then

re-filed the instant action on March 26, 2026. See Compl.; see also Oudekerk I. When

plaintiff filed his pleadings, in both Oudekerk I and this action, he was a pretrial detainee

housed at Warren County Jail, where he remains in custody today. See VINElink,

https://www.vinelink.com/search/persons;limit=20;offset=0;showPhotos=false;isPartialSearch

=false;siteRefId=NYSWVINE;personFirstName=nicholas;personLastName=oudekerk;stateSe

rved=NY (last visited June 26, 2026).8

In his complaint, plaintiff claims that, in December of 2023, defendants Sergeant

Thomas and Corrections Officer Crumb used excessive force when they unnecessarily and

unlawfully deployed a chemical agent upon plaintiff knowing that plaintiff was allergic to the

substance. Compl. at 5, 8, 11-14. Further, Corrections Officer Monda failed to protect

plaintiff from the unlawful deployment of the chemical agent as he was in close proximity to

where this all occurred. Id. at 15-16.

Specifically, plaintiff explained that, on the day in question, he was having a

conversation with another inmate. Compl. at 5. Monda indicated that the individuals were

arguing; however, plaintiff states that they were not and Monda only silently walked between

8 “VINE is the nation’s leading victim notification network [which] allows [the general public] . . . to access timely

and reliable information about offenders or criminal cases in U.S. jails and prisons.” VINE available at

https://www.vinelink.com/.

the two individuals during their discussion. Id. at 5-6. Monda then gave the order for all

inmates to return to their cells. Id. at 6. At the time of the order, plaintiff was in the shower,

thus he required additional time to rinse off his body and get dressed before returning to his

cell. Id. Thomas and Crumb approached the shower area and rushed plaintiff to get dressed.

Id. The two men stated plaintiff was swearing at them and refusing to return to his cell;

however, plaintiff denies these assertions. Id. at 7.

To purportedly help expedite plaintiff’s return to his cell, Crumb tossed plaintiff’s clean

boxers into the shower area; however, plaintiff claims Crumb intentionally threw the boxers

onto the dirty and wet floor. Compl. at 7. Plaintiff refused to put them on. Id. at 8. Thomas

offered to get a clean pair for plaintiff and instead returned with a blanket and ordered Crumb

to spray chemical agents on plaintiff. Id. The chemical was deployed despite plaintiff’s

warnings that he was allergic to the substance. Id. at 11. The chemicals were sprayed

nonetheless. Id. at 12-14.

As a result, petitioner’s throat began to swell and cause him pain. Compl. at 9.

Plaintiff was “unable to eat [his] next meal [and he] was in pain for a while [during his] next

several meals [rendering them] difficalt to eat[.]” Id.

Construing plaintiff's complaint with the leniency that the Court must afford a pro se

litigant, see Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996), plaintiff's allegations do not

plausibly suggest imminent danger of serious physical injury when he filed the complaint.

While plaintiff remains a pretrial detainee at the same facility where the alleged excessive use

of force happened, the Second Circuit – consistent with other courts across the country – has

made clear that allegations of past wrongs do not show an imminent danger existed when

this action was brought. See Pettus, 554 F.3d at 296 (risk of serious physical harm must

exist at the time the complaint is filed); Malik v. McGinnis, 293 F.3d 559, 562–63 (2d Cir.

2000) (past harm does not provide basis for avoiding three-strikes rule); see also King v.

Livingston, 212 Fed. Appx. 260, 262 (5th Cir. 2006) (allegations of past attacks by inmates

and prison officials which allegedly occurred six weeks before complaint was filed were

insufficient to establish imminent danger); Foust v. Perez, No. 2:23-CV-0179, 2026 WL

1021072, at *2 (E.D. Cal. Apr. 15, 2026) (holding that the “imminent danger exception does

not apply . . . [where p]laintiff does not allege any ongoing danger as a result of [a] one-time

use of excessive force,” that took place multiple weeks prior to the filing of his complaint).

Furthermore, plaintiff’s pleading fails to explain how an incident that occurred two and

a half years ago has continued to create “a threat or prison condition [that] is real and

proximate, and whe[re] the potential consequence is 'serious physical injury.'" Flemming v.

Kemp, No. 09-CV-1185 (TJM/DRH), 2010 WL 3724031, at *2 (N.D.N.Y. Aug. 19, 2010); see,

e.g., Sankara v. Gonyea, No. 9:18-CV-0534 (MAD/DJS), 2018 WL 3384460, at *3 (N.D.N.Y.

June 8, 2018) (finding that the allegations did not support a claim of imminent danger of

serious physical injury where “[a]ny danger posed by defendants’ alleged use of excessive

force against [plaintiff] in January 2018, had clearly dissipated by the time plaintiff signed his

complaint on April 30, 2018.”) (citing Pettus, 554 F.3d at 296); Bonano v. Costello, No. 9:19-

CV-0671 (GTS/CFH), 2019 WL 3081058, at *4 (N.D.N.Y. July 15, 2019) (reaching same

conclusion that imminent danger had dissipated where excessive force occurred in October

2018 and the complaint was signed on December 20, 2018); cf. Chavis, 618 F.3d at 170 (“An

allegation of a recent brutal beating, combined with three separate threatening incidents,

some of which involved officers who purportedly participated in that beating, is clearly the sort

of ongoing pattern of acts that satisfies the imminent danger exception.”).

Based upon the foregoing, the Court finds that plaintiff is barred under Section 1915(g)

from proceeding with this action IFP because he has three "strikes" and has not

demonstrated the applicability of the "imminent danger" exception.

III. LEAVE TO AMEND

In light of plaintiff's pro se status, the Court will give him an opportunity to present an

amended complaint. See Chavis, 618 F.3d at 170. Plaintiff is advised that any amended

complaint submitted in response to this Decision and Order must set forth a short and plain

statement of the facts he relies on in support of his claim that specific individuals named as

defendants in that pleading engaged in conduct that violated his constitutional rights, and

must also contain factual allegations sufficient to plausibly suggest that he faced "imminent

danger of serious physical injury" from one or more of the named defendants when he filed

this action. Plaintiff's amended complaint, which shall supersede and replace in its entirety

the original complaint, must be a complete pleading which sets forth all of the claims that

plaintiff wants this Court to consider as a basis for awarding relief in this action.

If plaintiff wishes to proceed with this action he must, within thirty (30) days of the filing

date of this Decision and Order, either (i) pay the statutory filing fee of four hundred and five

dollars ($405.00) in full, or (ii) file an amended complaint demonstrating that he faced

"imminent danger of serious physical injury" when he filed this action.9

IV. CONCLUSION

WHEREFORE, it is hereby

ORDERED that plaintiff's Second IFP Application, Dkt. No. 5, is held in abeyance; and

it is further

9 Plaintiff is reminded that claims of “imminent danger” set forth in wholly conclusory terms do not suffice. See

Chavis, 618 F.3d at 170.

ORDERED that within thirty (30) days of the date of this Decision and Order, plaintiff

shall either (i) pay the Court's filing fee of four hundred and five dollars ($405.00) in full, or (ii)

file an amended complaint demonstrating that he faced "imminent danger of serious physical

injury” from the named defendant(s) when he commenced this action; and it is further

ORDERED that upon plaintiff's compliance with this Decision and Order or the

expiration of the time set forth herein, the Clerk of the Court shall return the file to this Court

for review; and it is further

ORDERED that the Clerk of the Court shall serve a copy of this Decision and Order on

plaintiff.

Dated: July 1, 2026

Elizabeth C. Coombe

U.S. District Judge

10