Lurch, Jr. v. Bernal

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ROBERT DEREK LURCH JR., Plaintiff, -against- 20-CV-9329 (CM)

POLICE OFFICER DARIEL BERNAL, ORDER TO SHOW CAUSE UNDER ARRESTING OFFICER, NEWARK PD; 28 U.S.C. § 1915(g) DOCTOR THAT ORDERED THE SEDATIVES; JOHN DOE, OFFICER #1 (PARTNER OF A.O.), Defendants. COLLEEN McMAHON, Chief United States District Judge: Plaintiff, currently detained in the Anna M. Kross Center on Rikers Island, filed this action pro se and seeks in forma pauperis (“IFP”) status. The Court directs Plaintiff to show cause why the Court should not deny his IFP application under 28 U.S.C. § 1915(g), the Prison Litigation Reform Act’s three-strikes provision. PRISON LITIGATION REFORM ACT The Prison Litigation Reform Act (PLRA) added the following three-strikes provision to the IFP statute: In no event shall a prisoner bring a civil action…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. § 1915(g). The Court finds that Plaintiff has accumulated three strikes under the PLRA, and he is therefore barred under § 1915(g) from filing any actions IFP. See Lurch v. City of New York, ECF 1:18-CV-2379, 11 (S.D.N.Y. June 12, 2018) (dismissed for failure to state a claim); Lurch v. N.Y.C. Dep’t. of Corr., ECF 1:16-CV-3835, 11 (S.D.N.Y. Nov. 11, 2016) (dismissed for failure to state a claim); Lurch v. Fayetteville Police Dep’t, No. 5:13-CV-0394 (BO), 2013 WL 12172637 (E.D.N.C. June 7, 2013), adopted sub nom., Lurch v. Fayetteville Police Dep’t & the Pantry, Inc., ECF 5:13-CV-0394, 13, 2013 WL 12172877 (July 31, 2013) (dismissed as frivolous). Because Plaintiff is barred under § 1915(g), unless he is “under imminent danger of

serious physical injury,” Plaintiff may not proceed IFP, but rather must prepay the full $400.00 in filing fees required to bring an action in this Court. Plaintiff does not allege any facts suggesting that he is in imminent danger of serious physical injury.1 Instead, Plaintiff alleges that on September 26, 2020, he was falsely arrested in Newark, New Jersey,2 and that during the course of that arrest, Defendant Bernal used excessive force against him. Plaintiff alleges further that he was taken to University Hospital and at the hospital, he was forcibly medicated. NOTICE AND OPPORTUNITY TO BE HEARD A pro se litigant is generally entitled to notice and an opportunity to be heard before the Court issues a final decision that is unfavorable to the litigant. See Snider v. Melindez, 199 F.3d 108, 113 (2d Cir. 1999) (requirement of notice and opportunity to be heard “plays an important

role in establishing the fairness and reliability” of the dismissal order, “avoids the risk that the court may overlook valid answers to its perception of defects in the plaintiff’s case,” and prevents unnecessary appeals and remands).

1 An imminent danger is not one “that has dissipated by the time a complaint is filed,” Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009); rather, it must be one “existing at the time the complaint is filed,” Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002). 2 Because Newark, New Jersey is not located in this district, see 28 U.S.C. § 112(b), even if Plaintiff was not barred under 28 U.S.C. § 1915(g), jurisdiction for his claims would not be proper in this Court. 2 The Court therefore grants Plaintiff leave to submit a declaration showing that, while a prisoner, he has not filed three or more cases that were dismissed as frivolous, malicious, or for failure to state a claim. Plaintiff must submit this declaration within thirty days. If Plaintiff does not make this showing, or if he fails to respond to this order, the Court will deny Plaintiff’s IFP

application, dismiss the action without prejudice, and bar Plaintiff from filing future actions IFP while he is a prisoner.3 CONCLUSION The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. The Court directs Plaintiff to show cause why the Court should not deny his IFP application under the PLRA’s three strikes provision, 28 U.S.C. § 1915(g). Plaintiff must file a declaration within thirty days explaining any reason why he should not be barred under the PLRA. A declaration form is attached to this order for Plaintiff’s convenience. If Plaintiff does not show cause, or if he fails to respond to this order, the Court will deny Plaintiff’s IFP application, dismiss this action without prejudice, and bar Plaintiff under § 1915(g) from filing

future actions IFP while he is a prisoner.

3 Plaintiff is not barred from filing a new case by prepaying the filing fee. 3 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). SO ORDERED. Dated: November 9, 2020 New York, New York hi hb hich Chief United States District Judge

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

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