Elleby v. United States

• Court: United States Court of Federal Claims
• Decided: April 12, 2017
• Docket: 17-351
• Status: Unpublished

Opinion

Ol§§ …§AL

In the United States Court of Federal Claims N0.17'-351C FlLED

Filed: April 12, 2017

NOT FOR PUBLICATION AP:R 1 2 2017 ) u.s. coast oF TAYE LAMONTE ELLEBY, ) FEDERAL CLA|N|S ) Pro Se; fn Forma Pauperis; 28 U.S.C. § Plaintift`, ) 1915(g). ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ) )

Taye L. Efleby, Wallkill, NY, plaintiff pro se.

Natharmel Brown Yale, Trial Attorney, United States Department of Justice, Civil Division, Comrnercial Litigation Branch, Washington, DC, for defendant.

MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

On March 14, 2017, plaintiff pro se, Taye Lamonte Elleby_Who is currently incarcerated at the Shawangunl< Correctional Facility in Wallkill, NeW York_filed the complaint in this action alleging various constitutional and procedural violations related to his criminal conviction and subsequent incarceration See generally Cornpl. As relief plaintiff seeks

certain injunctive relief and monetary damages Id.

On March 29, 2017, the Clerk’s Office also received from plaintiff a document requesting that the Court Waive his “public administrative fee”. Although plaintiff did not supply the affidavit required by 28 U.S.C. § 1915 (a), the Court construes plaintiffs filing as a request to proceed in this matter in forma pauperis 28 U.S.C. § 1915 (1996).

Prior to commencing this action, plaintiff filed several cases in the United States District Court for the Southern District of NeW York challenging various aspects of his criminal

conviction and incarcerationl See Elleby v. New York Post, et al., 14-CV-1323 (LAP) (S.D.N.Y

Apr. 28, 2014) (dismissing complaint for failure to State a claim); Elleby v. DeRose, et al, 15- CV-0883 (LAP) (S.D.N.Y. Mar. 27, 2015) (dismissing complaint as frivolous and for failure to sufficiently allege a violation of 42 USC § 1983); Elleby v. City ofNew York, et al.,lo~CV-970 (LAP) (S.D,N.Y. Feb. 29, 2016) (disrnissing complaint for failure to state a claim). The district court dismissed each of these cases upon the grounds that either plaintiffs claims Were frivolous

or that plaintiff had failed to state a plausible claim for relief. Ial.

Upon careful review of the complaint in this matter, the Court concludes that plaintiff has not alleged facts showing that he is under imminent threat of serious physical injury. See generally Compl. As a result, plaintiff must pay the full filing fee prior to proceeding With the present matter, because plaintiff has previously filed at least three complaints that Were

dismissed as frivolous, malicious, or for failure to state a claim. See 28 U.S.C. § l915(g).

And so, the Court ()RDERS plaintiff to pay the Couit’s $400 filing fee in full Within thirty (30) days of the entry of this Order. Failure to comply with this Order Will result in the dismissal of plaintiffs complaint for failure to prosecute, or to comply With an Order of the

Court, pursuant to Rule 41 of the Rules of the United States Court of Federal Claims, RCFC 41(b).

IT IS SO ORDERED.