Randolph v. New York State

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

RYAN KEITH RANDOLPH,

Plaintiff,

21-CV-10959 (LTS) -against-

ORDER OF DISMISSAL UNDER 28 U.S.C. § 1915(g)

NEW YORK STATE,

Defendant.

LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff, who is currently incarcerated in Fishkill Correctional Facility, brings this action pro se. Plaintiff also requests to proceed in forma pauperis (IFP), that is, without prepayment of fees. Plaintiff is barred, however, from filing any new action IFP while he is a prisoner. See Randolph v. Clinton Dannemora Corr. Fac., ECF 1:12-CV-2354, 5 (S.D.N.Y. July 11, 2012). 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 from 1983 to the present, Defendants violated his constitutional rights while he was incarcerated at Auburn, Fishkill, Clinton, and Elmira Correctional Facilities by forcing him to eat food in 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). violation of his religious beliefs, causing his soul to be tormented by unclean spirits and causing him to develop diabetes.1 On November 5, 2021, Plaintiff brought an action in this Court raising similar claims, and by order dated November 10, 2021, the Court dismissed the action without prejudice under the PLRA’s “three-strikes” rule. See Randolph v. New York State, ECF 1:21-CV- 9243, 4 (S.D.N.Y. Nov. 10, 2021) Plaintiff also raised similar claims in 2018. By order dated August 1, 2018, the Honorable Colleen McMahon, in her capacity as Chief Judge, noted that Plaintiff is barred from filing any new action IFP while a prisoner unless he is under imminent danger of serious physical injury, but transferred the action to the United States District Court for the Northern District of New York, for a determination of whether Plaintiff was under imminent danger of serious physical injury. See Randolph v. New York State Dep’t of Corr., ECF 1:18-CV- 6181, 4 (S.D.N.Y. Aug. 1, 2018). By order dated October 1, 2018, the Honorable Thomas J. McAvoy of the United States District Court for the Northern District of New York determined that Plaintiff was not entitled to the imminent danger exception, and the Court granted Plaintiff days to pay the filing fees. See Randolph v. New York State Dep’t of Corr., ECF 9:18-CV- 0934, 8 (N.D.N.Y. Aug. 21, 2018).2 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).3 Plaintiff remains barred from filing any future action IFP while he is in custody unless he is under imminent threat of serious physical injury.4 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 mail a copy of this order to Plaintiff and note service on the docket.

SO ORDERED.

Dated: December 22, 2021

New York, New York /s/ Laura Taylor Swain

LAURA TAYLOR SWAIN

Chief United States District Judge