Akassy v. Hardy Akassy v. Simmons Akassy v. Office of the Appellate
Opinion
*93
Plaintiff
pro se
Hugues-Denver Akassy, a New York State prisoner convicted in 2011 of,
inter alia
, first-degree rape and sentenced to 20 years' imprisonment, has filed three notices of appeal to challenge judgments entered in the United States District Court for the Southern District of New York, Colleen McMahon,
Chief Judge
, dismissing three civil actions he filed in 2017, in which he sought to proceed
in forma pauperis
(or "IFP"). In each action, the district court, pursuant to the three-strikes provision of the Prison Litigation Reform Act of 1995 ("PLRA"),
Although a prisoner who does not have the financial resources to prepay docketing fees may be allowed to proceed
in forma pauperis
,
see
In 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 physical injury.
In 2017, Akassy filed the three federal court civil actions at issue here, alleging misfeasance and ineffective assistance by attorneys who had represented him in his criminal case before trial, during trial, or on appeal. Two of the actions, Akassy v. Hardy (" Hardy '') and Akassy v. Simmons (" Simmons ''), were commenced in February and March, respectively, in the Eastern District of New York; the third action, Akassy v. Office of the Appellate Defender (" Appellate Defenders ''), was commenced in April in the District of Columbia. In each action, Akassy sought leave to proceed in forma pauperis . All three actions were eventually transferred, on venue grounds, to the Southern District of New York ("SDNY").
Addressing the
Hardy
and
Simmons
cases following their transfers to SDNY, the district court noted that Akassy had brought actions against several media organizations in SDNY in 2014,
see
Akassy v. N.Y. Times
, No. 14-CV-2499;
Akassy v. News Corp., Inc.
, No. 14-CV-2589;
Akassy v. PIX 11 News, Inc.
, No. 14-CV-3186;
Akassy v. Associated Press
, No. 14-CV-3213, complaining that their coverage in 2010 and 2011 of his criminal proceedings defamed him. The court noted (a) that an
*94
order entered in 2015 dismissed four of those actions on the ground that each complaint, on its face, revealed that the claims it asserted were barred by New York's one-year statute of limitations-
see
Akassy v. N.Y. Times
, No. 14-CV-2499, at 6 (S.D.N.Y. July 31, 2015)-and (b) that the appeals from those four dismissals had themselves been dismissed in 2015 "as lack[ing] an arguable basis either in law or in fact"; the court thus ordered Akassy to show cause why he should not be barred from pursuing the present actions
in forma pauperis
in light of the PLRA's three-strikes rule. Order To Show Cause in
Hardy
and
Simmons
,
see
Akassy v. Hardy
, Nos. 17-CV-4120, 17-CV-4123,
In response to the order to show cause, Akassy made arguments similar to those he makes in support of his present motion for IFP status on these appeals (which we discuss below), contending principally that none of the above eight dismissals should be characterized as strikes within the meaning of § 1915(g) and stating that he had been assaulted by prison guards and other inmates and that his life was in danger.
The district court found Akassy's response insufficient to show that § 1915(g) was inapplicable. It concluded that "[w]hile Plaintiff was a prisoner, he filed three or more cases that are deemed strikes because they were dismissed as frivolous or malicious or for failure to state a claim." Bar Order Under
In dealing with the
Appellate Defenders
case following its transfer to SDNY, the district court noted that Akassy had also filed that case in 2017, well after he had accumulated more than three strikes. For the reasons stated with respect to the
Hardy
and
Simmons
cases, the district court entered a parallel order in
Appellate Defenders
, principally denying Akassy
in forma pauperis
status, and dismissing the complaint without prejudice to his filing a new action with payment of the filing fee.
See
Order of Dismissal Under
DISCUSSION
In moving for
in forma pauperis
status to pursue his appeals challenging the dismissals in
Hardy
,
Simmons
, and
Appellate Defenders
, Akassy contends principally (a) that none of the dismissals of his 2014 actions should have been counted as strikes under § 1915(g) for failure to state a claim on which relief may be granted, arguing "I did state my claims with supporting exhibits" (Akassy Motion for Leave To Appeal In Forma Pauperis A Bar Order Under
We reject, first, Akassy's contention that the district court's 2015 statute-of-limitations-based dismissals should not be considered strikes. Section 1915(g) expressly encompasses, inter alia , dismissals for failure to state a claim on which relief may be granted, and as a general matter,
[a] complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. If the allegations , for example, show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim ....
Jones v. Bock
,
Accord
:
Parker v. Montgomery County Correctional Facility
,
As to this Court's dismissals of Akassy's four appeals from the statute-oflimitations dismissals, in which we stated that his appeals "lack[ed] an arguable basis either in law or in fact,"
Akassy v. PIX 11 News, Inc.
, No. 15-2905, at 2 (2d Cir. December 14, 2015) (internal quotation marks omitted), Akassy does not seriously contend that such a dismissal is not a strike; nor could he. The PLRA requires the imposition of a strike for any dismissal of a complaint or appeal that is found to be "frivolous."
Instead, Akassy argues that our dismissals of his four appeals in 2015, which he refers to as his "consolidated-dismissed-claims" (Akassy's Present IFP Motion at 11) should be counted as only a single strike because the dismissals were implemented in a single order. We reject this contention as well. Appeals in separate actions may properly be consolidated only by order of the court of appeals,
see
Fed. R. App. P. 3(b) & Advisory Committee Note (1998); and Akassy's 2015 appeals were consolidated by this Court only "[f]or the purposes of th[e] order" that decided his motions for
in forma pauperis
status.
Akassy v. PIX 11 News, Inc.
, No. 15-2905, at 2 (2d Cir. December 14, 2015). His separate appeals did not thereby become a single appeal. Indeed, even in fully "consolidated appeals[,] the separate appeals do not merge into one," Fed. R. App. P. 3 Advisory Committee Note (1998);
see also
Palmerv. New York State Department of Corrections
,
In sum, prior to filing his 2017 actions against his former attorneys, Akassy plainly had incurred more than three strikes within the scope of § 1915(g).
Nor is there merit in Akassy's other arguments. In an effort to qualify for § 1915(g)'s only stated exception to the three-strikes bar, Akassy, who seeks to sue his former attorneys, states "my life is in a cl[ea]r and present danger as I have been subjected to abuses, physical assaults and denied my prisoner's rights by overzealous Correctional Officers for filing grievances and reporting abuses to law enforcement authorities and Human Rights Organizations" and "because of the nature of my alleged criminal case and the legal malpractice." (Akassy's Present IFP Motion at 10). To qualify for the exception, however, a prisoner must allege facts sufficient to show that he was " 'under imminent danger of serious physical injury' " "at the time the complaint is filed"; it is not sufficient to allege that "harms ... had already occurred."
Malik v. McGinnis
,
Akassy's contention that the restrictions imposed by § 1915(g) violate his constitutional rights is foreclosed by our decision in
Polanco v. Hopkins
,
Akassy's contention that he should be granted
in forma pauperis
status because the District of Columbia district court in the
Appellate Defenders
case "stated that [he] 'raised viable legal claims' " (Akassy Motion for Reversal of the judgment in
Appellate Defenders
at 4 (quoting, without citation, the District of Columbia venue transfer order) ) is both meritless and misleading. The argument is meritless because "[t]he only exception to payment of the filing fee" for a prisoner who has accumulated three strikes arises "if the prisoner is under 'imminent danger of serious physical injury.' "
Welch v. Galie
,
In any event, Akassy's argument that the District of Columbia court "stated that" his claims were " 'viable' " is misleading because the words he quotes appeared only in that court's statement that it was transferring venue because it "presume[d] without deciding that the plaintiff raises viable legal claims," Akassy v. Office of the Appellate Defender , No. 17-0668 (D.D.C. Order, June 9, 2017, at 2 (emphasis added).) Clearly the District of Columbia court *98 made no decision that Akassy's claims were viable.
Finally, we reject Akassy's request that we remand his actions to the district court with instructions to hold them in abeyance until he is able to pay the filing fees. Given § 1915(g)'s provision that a three-strikes prisoner shall "in no event bring" a civil action without paying the filing fee, the district court plainly has the authority to dismiss an action filed in contravention of this provision. We see no abuse of discretion in the dismissal of Akassy's 2017 actions without prejudice to his right to file new actions with payment of the filing fees.
CONCLUSION
We have considered all of Akassy's arguments in support of his motions for leave to prosecute the present appeals in forma pauperis and have found them to be without merit. His motions for in forma pauperis status are denied; his motions for reversal of the district court judgments that dismissed his actions are denied as moot. The appeals are dismissed as lacking an arguable basis either in law or in fact.
Reference
- Full Case Name
- Hugues-Denver AKASSY, Plaintiff-Appellant, v. Glenn F. HARDY, in His Capacity as 18B Court-Appointed Counsel, Defendant-Appellee. Hugues-Denver Akassy, Plaintiff-Appellant, v. Howard D. Simmons, in His Capacity as 18B Court-Appointed Counsel, Defendant-Appellee. Hugues-Denver Akassy, Plaintiff-Appellant, v. Office of the Appellate Defender, Richard M. Greenberg, Risa Gerson, Eunice C. Lee, Rahul Sharma, Alexandra Keeling, Anastasia Benshoff Heeger, Alain Litwa, Defendants-Appellees.
- Cited By
- 67 cases
- Status
- Published