Jones v. United States Federal Court Investigator

• Court: District Court, E.D. New York
• Decided: December 15, 2021
• Docket: 1:21-cv-06236
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------x RAFAEL ARDEN JONES a/k/a RAFAEL ARDEN JONES Sr.,

Plaintiff, MEMORANDUM & ORDER 21-CV-6236 (PKC) (RER) - against -

UNITED STATES FEDERAL COURTS INVESTIGATOR JOHN DOE, et al.,

Defendants. -------------------------------------------------------x PAMELA K. CHEN, United States District Judge: Plaintiff, currently incarcerated at the Vernon C. Bain Correctional Center, brings this pro se action pursuant to 42 U.S.C. § 1983 in connection with events that allegedly occurred in St. Louis, Missouri from April 16, 2005 to November 3, 2021. (See Complaint (“Compl.”), Dkt. 1, at 4.) Plaintiff seeks to proceed in forma pauperis, i.e., without paying the usual fees associated with a lawsuit, including the filing fee. (See Dkt. 3.) Plaintiff’s request, however, must be denied under subsection (g) of 28 U.S.C. § 1915, the statute governing the grant of in forma pauperis status to incarcerated plaintiffs. 28 U.S.C. § 1915(g) states that [i]n 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 injury. 28 U.S.C. § 1915(g); see Lomax v. Ortiz-Marquez, 140 S. Ct 1721 (2020) (“Section 1915(g)’s three-strikes provision refers to any dismissal for failure to state a claim, whether with prejudice or without.”); Polanco v. Hopkins, 510 F.3d 152, 155–56 (2d Cir. 2007) (upholding constitutionality of § 1915(g)); see also Carolina v. Rubino, 644 F. App’x 68, 70–72 (2d Cir. 2016) (same). Plaintiff has, while incarcerated, previously brought three or more cases that were dismissed on the grounds that they were frivolous, or malicious, or failed to state a claim upon

which relief could be granted. (See Opinion, Memorandum, and Order, Jones v. Norman, No. 13- CV-596 (AGF), ECF 4, (E.D. Mo. Apr. 3, 2013) (denying Plaintiff’s motion for leave to proceed in forma pauperis and dismissing the case pursuant to 28 U.S.C. § 1915(g) because Plaintiff had already brought three or more cases while incarcerated that were dismissed on the grounds that they were frivolous, or malicious, or failed to state a claim upon which relief could be granted (citing Jones v. Brayer, No. 07-CV-1723 (ERW), 2007 WL 3377009, (E.D. Mo. Nov. 13, 2007) (dismissing case for failing to state a claim, being frivolous, and being malicious in seeking the death penalty against the defendants); Jones v. Brayer, No. 07-CV-1704 (RWS), 2007 WL 3353925, (E.D. Mo. Nov. 9, 2007) (same); Opinion, Memorandum, and Order, Jones v. Isom, No. 08-CV-1584 (TIA) (E.D. Mo. Dec. 5, 2008), ECF 6 (dismissing case for failing to state a claim and being frivolous)).1) In addition, Plaintiff does not allege that he is under imminent danger or

serious physical harm, which would allow him to proceed in forma pauperis despite the dismissals of his prior cases. See 28 U.S.C. § 1915(g). Accordingly, Plaintiff’s application to proceed in forma pauperis is denied and this case is dismissed without prejudice for failure to pay the filing fee or establish eligibility to proceed in forma pauperis under 28 U.S.C. § 1915(g). If Plaintiff wishes to reassert his claims, he must file a new action and pay the $402 filing fee to the Clerk of Court of the Eastern District of New York.

1 A review of the Public Access to Court Electronic Records (PACER), a national database of cases filed in the federal courts, indicates that Plaintiff has filed 53 civil cases in the United States District Court for the Eastern District of Missouri alone. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal of this Memorandum & Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444–45 (1962). SO ORDERED.

/s/ Pamela K. Chen Pamela K. Chen United States District Judge Dated: December 15, 2021 Brooklyn, New York