Burns v. Long

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK GEORGE BURNS, Plaintiff, 1:23-CV-9399 (LTS) -against- ORDER OF DISMISSAL UNDER 28 U.S.C. § 1915(g) MARY PAT LONG, et al., Defendants. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff George Burns, who is currently held in the Westchester County Jail, brings this action pro se. He requests, in his complaint, to proceed without prepayment of fees, that is, in forma pauperis (“IFP”). Plaintiff is barred, however, from filing any new federal civil action IFP while he is a prisoner. See Burns v. Schell, No. 20-CV-5582, 2020 WL 6365556 (S.D.N.Y. Oct. 28, 2020), aff’d, No. 20-3883, 2023 WL 1113215 (2d Cir. Jan. 31, 2023) (summary order). The court’s previous ruling in Burns, 2020 WL 6365556, 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. 28 U.S.C. § 1915(g). Although Plaintiff has filed this new federal civil action seeking IFP status, his complaint does not show that he was under imminent danger of serious physical injury at the time that he filed his complaint.1 Instead, Plaintiff allegations regard the litigation of his state-court criminal

1 An imminent danger is one “existing at the time the complaint is filed.” Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir. 2002). A danger “that has dissipated by the time a actions (including litigation concerning his mental competency2), his legal representation during those actions, and jail disciplinary infractions that he has been charged with as a result of refusing to leave his cell to appear for court dates. Plaintiff is therefore barred from bringing this federal civil action IFP, and the Court, thus, denies Plaintiff IFP status and dismisses this action

without prejudice. CONCLUSION The Court denies Plaintiff IFP status and dismisses this action without prejudice under the PLRA’s “three-strikes” rule. See 28 U.S.C. § 1915(g).3 Plaintiff remains barred from filing any future federal civil action IFP while he is a prisoner, unless he is under imminent danger of serious physical injury.4 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).

complaint is filed” is not sufficient. Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009). 2 Plaintiff alleges no facts showing that any court has found him to be incompetent. 3 Plaintiff may commence a new federal civil action by paying the relevant fees to bring that action. If Plaintiff does so while he is a prisoner, 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). 4 The court may bar any vexatious litigant (including a nonprisoner) from filing future civil actions in this court (even if the relevant 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). The Court directs the Clerk of Court to enter a judgment dismissing this action. SO ORDERED. Dated: November 17, 2023 New York, New York

/s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge