DeBlasio v. The City of New York

• Court: District Court, S.D. New York
• Decided: October 3, 2022
• Docket: 1:22-cv-07190
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK PHILIP E. DeBLASIO, Plaintiff, -against- 22-CV-7190 (LTS) THE CITY OF NEW YORK; MUHAMMAD ORDER OF DISMISSAL UNDER MUHAMMAD, PRESIDENT OF MASJID 28 U.S.C. § 1915(g) MADINA; MR. MAHMOOD, OWNER OF SAHARAH EAST, Defendants. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff, who is currently incarcerated at the Fulton County Jail in Atlanta, Georgia, brings this action pro se. Plaintiff also requests to proceed without prepayment of fees, that is, in forma pauperis (“IFP”). Plaintiff is barred, however, from filing any new action IFP while he is a prisoner. See DeBlasio v. Williams, ECF 1:19-CV-0201, 26 (S.D.N.Y. July 28, 2020) (listing strikes). That order relied on the “three-strikes” provision of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g), which provides that: In 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. Although Plaintiff has filed this new action seeking IFP status, his complaint does not show that he is in imminent danger of serious physical injury.1 Instead, Plaintiff alleges that he was indicted in 2018 and found guilty that same year. He asserts that the conviction was

1 An imminent danger is one “existing at the time the complaint is filed.” Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002). A danger “that has dissipated by the time a complaint is filed” is not sufficient. Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009). subsequently reversed and dismissed on January 29, 2021, and that he had therefore been unlawfully incarcerated for 35 months. Plaintiff is therefore barred from filing this action IFP. CONCLUSION The Court denies Plaintiff’s request to proceed IFP, and the complaint is dismissed without prejudice under the PLRA’s “three-strikes” rule. See 28 U.S.C. § 1915(g).2 Plaintiff

remains barred from filing any future action IFP while he is in custody, unless he is under imminent threat of serious physical injury.3 Id. The Court certifies under 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. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). The Clerk of Court is directed to enter judgment in this case. SO ORDERED. Dated: October 3, 2022 New York, New York

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

2 Plaintiff may commence a new action by paying the filing fees. If Plaintiff does so, 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). 3 The Court may bar any vexatious litigant (including a nonprisoner) from filing future actions (even if the filing fee is 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).