Opinion
Civil Action No. 9:10-CV-1568 (DNH/DEP)
08-13-2012
DENNIS NELSON Plaintiff, v. BRIAN DOUGHERTY, RN II, et al., Defendants.
FOR PLAINTIFF : DENNIS NELSON, Pro Se Romulus, NY 14541 FOR DEFENDANTS : HON. ERIC T. SCHNEIDERMAN Office of Attorney General OF COUNSEL : DEAN J. HIGGINS, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: DENNIS NELSON, Pro Se
Romulus, NY 14541
FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
Office of Attorney General
OF COUNSEL: DEAN J. HIGGINS, ESQ.
Assistant Attorney General
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Dennis Nelson, a prolific inmate litigant who has been granted leave to proceed in forma pauperis ("IFP"), has commenced this action pursuant to 42 U.S.C. § 1983 alleging civil rights violations against two nurses who work at the Marcy Correctional Facility ("Marcy"), where plaintiff was incarcerated at the time of filing, and Carl Koenigsmann, who was then the Regional Medical Director and is presently the Deputy Commissioner and Chief Medical Officer within the New York State Department of Corrections and Community Supervision ("DOCCS"). In his complaint, Nelson maintains that he has been denied appropriate medical care and treatment for a long-standing stasis ulcer on his lower left leg, which he claims needs to be amputated, and asserts that the denial represents deliberate indifference to his serious medical needs, in violation of the Eighth Amendment. Plaintiff's complaint seeks recovery of $9,999.99 and an order directing his transfer to one of two other correctional facilities where, he claims, there are hospitals available that could provide him with better treatment.
Now that discovery is closed, the defendants have moved for summary judgment seeking dismissal of plaintiff's claims on a variety of grounds. Also included within their motion is an application for revocation of plaintiff's IFP status based upon the "three strikes" provision of 28 U.S.C. § 1915(g). Because it is abundantly clear that plaintiff has accumulated three strikes, within the meaning of that provision, and based upon the lack of any palpable showing of circumstances sufficient to meet the imminent danger exception to the three strikes rule, I recommend that plaintiff's IFP status be revoked and that the remaining portions of defendants' motion be held in abeyance pending plaintiff's payment of the required $350 filing fee. I. BACKGROUND
In light of the procedural posture of the case the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in favor of the plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Plaintiff is a New York State prison inmate confined under the supervision of the DOCCS. See generally Complaint (Dkt. No. 1). At all times relevant to his complaint, plaintiff was designated to Marcy, located in Marcy, New York, where he was incarcerated from May 13 until December 30, 2010. Id.
In his complaint, which is lacking in factual detail, plaintiff merely states that he has commenced this action because he is in imminent danger of suffering serious physical injury to his leg, claiming that he was told by the defendants that nothing further can be done for his leg and that it will have to be amputated. Complaint (Dkt. No. 1) Statement of Facts. The facts surrounding plaintiff's claims and his medical condition, however, are more fully developed in the record now before the court.
When plaintiff arrived at Marcy in May 2010, he had been suffering from the ulcer to his lower left leg for eleven years. Defendant's Local Rule 7.1(a)(3) Statement (Dkt. No. 25-1) ¶¶ 16-18. Upon his transfer into Marcy, plaintiff was examined by a facility doctor, and it was noted that plaintiff had cellulitis of the left lower extremity, which was secondary to self-mutilation.Plaintiff's Ambulatory Health Record ("AHR") (Dkt. No. 28-1) p. 713. It was further noted that plaintiff was prescribed, among other things, a daily xeroform wet-to-dry dressing change for his leg wound. Id. at p. 712. Plaintiff's medical records reveal that medical staff at Marcy attempted at least daily dressing changes for plaintiff's left leg condition, which plaintiff often refused for various reasons, including his preference to sleep or attend programs. See Plaintiff's Deposition Transcript ("Tr.") (Dkt. No.25-7) pp. 26-27; see also, e.g., Plaintiff's AHR (Dkt. No. 29-3) pp. 1134, 1138-39, 1141, 1143-45, 1147,1150,1154, and 1158. The condition of plaintiff's left leg ulcer therefore varied according to plaintiff's level of compliance with the prescribed treatment, and also due to his self mutilation, which included rubbing feces in his wound and picking at it. Dougherty Decl. (Dkt. No. 25-2) ¶ 10.
Cellulitis is "an acute, diffuse, spreading edematous, suppurative inflammation of the deep subcutaneous tissues, and sometimes muscle, sometimes with abscess formation." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 330 (31st ed. 2007).
Upon his admission into Marcy it was also noted that plaintiff was prescribed a variety of medications for various other conditions from which he suffered. See Plaintiff's AHR (Dkt. No. 28-1) p. 713.
On or about December 3, 2010, in addition to the dressing change, daily whirlpool treatments were prescribed for plaintiff's wound care. Plaintiff's AHR (Dkt. No. 29-3) p. 1118. On December 15, 2010, upon examination by a Marcy medical professional, it was noted that plaintiff's leg wound exhibited less necrosis, and a recommendation was made that whirlpool treatments continue. Plaintiff's AHR (Dkt. No. 27-2) p. 1165.
Upon Nelson's transfer into the Coxsackie Correctional Facility on December 30, 2010, he was examined by a medical professional working at that facility. Plaintiff's left leg wound of eleven years was once again noted, as was his prescribed whirlpool treatments and daily dressing changes. Plaintiff's AHR (Dkt. No. 29) p. 861. No emergent or dangerous medical condition was discerned at that time. See Plaintiff's AHR (Dkt. No. 29-1) pp. 936-37, 940, and 962-963.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on December 28, 2010, and thereafter was granted leave to proceed IFP. Dkt. Nos. 1, 4. Named as defendants in plaintiff's complaint are Brian Dougherty, a registered nurse at Marcy; Sandra Marin-Karas, the facility's Nurse Administrator; and Carl J. Koenigsmann, formerly the DOCCS Regional Medical Director.
In my order dated December 23, 2010, granting plaintiff's IFP application, I addressed a potential three strikes concern and, while finding that Nelson had indeed accumulated far more than three strikes by the time his complaint was filed, concluded that his allegations met the threshold requirement under the Second Circuit's decision in Chavis v. Chappius, 618 F.3d 162 (2d Cir. 2010) for alleging imminent danger. Order dated February 2, 2011 (Dkt. No. 8). In that initial order, however, I went on to note that plaintiff's IFP status would be revoked if, as the case progressed, the court concluded that he did not face imminent danger of serious physical injury at the time he commenced the action. Id. at p.6.
On January 6, 2012, following the completion of discovery, defendants moved for summary judgment seeking dismissal of plaintiff's complaint. Dkt. No. 25. In their motion, defendants request revocation of plaintiff's IFP status based upon 28 U.S.C. § 1915(g). In addition, defendants argue that 1) plaintiff's Eighth Amendment cause of action lacks merit; 2) defendants Martin-Karas and Koenigsmann were not personally involved in the constitutional violations alleged; and 3) plaintiff's request for transfer to a different facility fails to state a cause of action. Despite having received the requisite notice of the consequences of his failing to respond, plaintiff has not submitted any opposition to defendants' motion, which is now ripe for determination and has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Three Strikes Provision
In their motion defendants invoke 28 U.S.C. § 1915(g), arguing that under that section plaintiff's litigation history, which includes for greater than three merit-based dismissals, warrants revocation of his IFP status.
Section 1915(g), which was enacted as part of sweeping inmate litigation reform brought about by adoption of the Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), though engendering far less litigation than some of its PLRA counterparts including, notably, the exhaustion of remedies requirement of 42 U.S.C. § 1997e(a), provides 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 physical injury.28 U.S.C. § 1915(g). The manifest intent of Congress in enacting this "three strikes" provision was to curb prison inmate abuses and to deter the filing of multiple, frivolous civil rights suits by prison inmates. Tafari v. Hues, 473 F.3d 440, 443-44 (2d Cir. 2007); Gill v. Pidlychak, No. 9:02-CV-1460, 2006 WL 3751340, at *2 (N.D.N.Y. Dec. 19, 2006) (Scullin, S.J. & Treece, M.J.). The prophylactic effect envisioned under section 1915(g) is accomplished by requiring a prisoner who has had three previous strikes to engage in the same cost-benefit analysis that other civil litigants must make before deciding whether to commence suit, accompanied by the filing of the full fee - that is, to assess whether the result to be achieved justifies the filing fee expenditure. Tafari, 473 F.3d at 444; Ibrahim v. District of Columbia, 463 F.3d 3, 6 (D.C. Cir. 2006). As the Second Circuit has noted, in the context of PLRA amendments requiring inmates to authorize prison officials to make deductions from inmate accounts to be applied as partial payments of appellate filing fees for prisoners granted in forma pauperis status,
[p]rior to the enactment of the in forma pauperis amendments, inmates suffered no economic disincentive to filing law suits. Indeed, the very nature of incarceration - prisoners have substantial free time on their hands, their basic living expenses are paid byNicholas v. Tucker, 114 F.3d 17, 20 (2d Cir. 1997), cert. denied sub nom., Nicholas v. Miller, 523 U.S. 1126, 118 S. Ct. 1812 (1998) (internal citations omitted); see also Gill, 2006 WL 3751340, at *2.
the state and they are provided free of charge the essential resources needed to file actions and appeals, such as paper, pens, envelopes and legal materials - has fostered a "'nothing to lose and everything to gain'" environment which allows inmates indiscriminately to file suit at taxpayers' expense.
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
The question of whether the dismissal of a prior action qualifies as a strike, for purposes of section 1915(g), is a matter of statutory interpretation, and as such presents a question for the court. Tafari, 473 F.3d at 442-43. In determining whether a dismissal satisfies the failure to state a claim prong of the statute, implicated in this case, courts have drawn upon the provisions of Rule 12(b)(6) of the Federal Rules of Civil Procedure for guidance, particularly in light of the similarity in phrasing utilized in the two provisions. Tafari, 473 F.3d at 442 (citing Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005)).
The Second Circuit has expressed its view that the time for determination of "strikes" is only when the section 1915(g) issue is ripe for adjudication, and that because of the potentially significant consequences flowing from such a finding, a court should not, when dismissing an inmate complaint, contemporaneously signal whether the dismissal should count as a "strike" for the purposes of that section. DeLeon v. Doe, 361 F.3d 93, 95 (2d Cir. 2004); see also Snider v. Melindez, 199 F.3d 108, 115 (2d Cir. 1999) ("We . . . doubt whether the entry of a strike is properly considered at the time an action is dismissed").
B. Application of Section 1915(g)
It appears to be firmly established that prior to commencing this action plaintiff had accumulated three or more strikes falling within section 1915(g), and Nelson seemingly does not dispute this fact. Indeed, it appears that Nelson has now filed fifty-four actions in the district courts which comprise the Second Circuit since 2000. See Public Access to Court Electronic Records ("PACER") https://pcl.uscourts.gov/view?rid=7rgHIPlIE8Ofp50RCaL9bCGSC6VUD4JCy 7Bw3iWZ&page=1 (last visited July 31, 2001) ; see also Nelson v. Warren, No. 10-CV-990, 2011 WL 7445581, at * 1 (N.D.N.Y. Dec. 12, 2011) (Homer, J.) report and recommendation adopted, 2012 WL 685755 (N.D.N.Y. Mar. 2, 2012) (Suddaby, J.). As I noted in my previous order granting plaintiff leave to proceed IFP, numerous courts have found that Nelson has accumulated more than "three strikes" for purposes of section 1915(g). See, e.g., Nelson v. Warren, No. 10-CV-990, 2011 WL 7445581, at * 1; Nelson v. Scoggy, 9:06-CV-1146, 2008 WL 4401874, at *1 (N.D.N.Y. Sept. 24, 2008) (Mordue, C.J.); Nelson v. Spitzer, 9:07-CV-1241, 2008 WL 268215, at *1 (N.D.N.Y. Jan. 29, 2008) (McAvoy, J.); Nelson v. Hamel, 9:07-CV-0540 (N.D.N.Y. Jul. 26, 2007) (Sharpe, J.). Moreover, as Chief Judge Mordue noted in Nelson v. Scoggy, "[p]laintiff does not deny that three or more inmate civil rights actions previously brought by him have been dismissed on the ground that they are frivolous, malicious, or fail to state a claim upon which relief may be granted." Nelson v. Scoggy, 2008 WL 4401874, at *1.
Plaintiff's claims in Nelson v. Warren, which was filed on August 17, 2010, approximately four months before this lawsuit, were similarly related to the alleged failure to treat his leg ulcer while at Marcy. See Nelson v. Warren, No. 9:10-CV-0990 (N.D.N.Y. filed Aug. 17, 2010) Dkt. No. 1. In his complaint Nelson alleged that he was in imminent danger of serious physical injury due to a "non-healing" blood clot and deep vein thrombosis. See id. at § 6. Recently, District Judge Glen T. Suddaby accepted and adopted Magistrate Judge David R. Homer's report in that action, recommending revocation of plaintiff's IFP status based upon his finding that Nelson had failed to show that his leg condition posed an imminent threat of serious physical injury, and further recommending dismissal of the complaint unless plaintiff paid the filing fee. Nelson v. Warren, 2012 WL 685755. Additionally, upon Judge Homer's recommendation, Judge Suddaby issued a bar order directing that "in no event shall [Nelson], as a prisoner, bring a future civil action in forma pauperis in this District unless he is under imminent threat of serious physical injury". Id. at *5 (emphasis added in original).
Since that time it appears that plaintiff may have accumulated even more strikes. See Nelson v. Warren, 2012 WL 685755; Nelson v. Wright, No. 9:10-CV-997, 2011 WL 6031392 (N.D.N.Y. Oct. 20, 2011) (Treece, M.J.), report and recommendation adopted, 2011 WL 6030994 (N.D.N.Y. Dec. 5, 2011) (Sharpe, J.).
I therefore conclude that plaintiff had accumulated well in excess of three strikes, within the meaning of section 1915(g), by the time this action was filed.
C. Imminent Danger Exception
As a safety valve, obviously intended to protect a prison inmate exposed to potential danger from the harsh consequences of his or her earlier folly, section 1915(g) provides that a prisoner who is in "imminent danger of serious physical injury" may avoid application of the three strikes rule of section 1915(g). See 28 U.S.C. § 1915(g); see also Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir. 2002). In accordance with this exception, an inmate who has had three prior "strikes" but nonetheless wishes to commence a new action in forma pauperis must show that he or she was under imminent danger at the time of filing; the exception does not provide a basis to avoid application of the three strikes on the basis of past harm. Malik, 293 F.3d at 562-63; see also Chavis, 618 F.3d at 169. An inmate who claims the benefit of this exception must also show that the danger faced rises to the level of exposure to a "serious physical injury." 28 U.S.C. § 1915(g). The imminent danger claimed by the inmate, moreover, must be real, and not merely speculative or hypothetical. Johnson v. Barney, No. 04 Civ. 10204, 2005 WL 2173950, at *1-2 (S.D.N.Y. Sept. 6, 2005) (finding that inmate's allegation of danger at facility he was not housed at, but may pass through at infrequent occasions in the future, does not establish imminent danger).
For a three-strikes litigant to qualify for the imminent danger exception, his or her complaint "must reveal a nexus between the imminent danger it alleges and the claims it asserts." Pettus v. Morgenthau, 554 F.3d 293, 298 (2d Cir. 2009). When determining whether the requisite relationship is present a court must examine "(1) whether the imminent danger of serious physical injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct asserted in the complaint and (2) whether a favorable judicial outcome would redress that injury." Id. at 299 (emphasis in original).
The term "serious physical injury," as utilized in section 1915(g), is nowhere concretely defined, although it has been construed by various courts as including a "disease that could result in serious harm or even death[.]" Ibrahim, 463 F.3d at 7. In deciding whether to invoke the exception, a court must examine the available pleadings, construed in a light most favorable to the plaintiff, to determine whether the plaintiff has alleged a serious physical injury. McAlphin v. Toney, 281 F.3d 709, 710 (8th Cir. 2002). Conditions which have been held to rise to a sufficient threshold level include denial of treatment for infected gums, resulting in damages of infection, McAlphin, 281 F.3d at 710; denial of adequate treatment for Hepatitis C, a "chronic and potentially fatal disease," Ibrahim, 463 F.3d at 6-7; and patterns of harassment from corrections officers, heart palpitations, chest pains and labored breathing, Ciarpaglini v. Saini, 352 F.3d 328, 330-31 (7th Cir. 2003) (finding upon reaching the merits, however, that plaintiff's complaint did not state an Eighth Amendment claim).
Plaintiff's eligibility for IFP status turns on whether he can establish that he faced imminent danger of serious physical injury on December 28, 2010, when this action was filed. Chavis, 618 F.3d at 169-70. Any potential claim of imminent danger in this case, however, must be rejected not only because of the rejection of the same claims previously made by plaintiff in this district, but also based upon the record now before the court.
Plaintiff's ongoing left leg condition has been the subject of several lawsuits filed by plaintiff in this district as well as others within the Second Circuit, and a number of courts have now concluded that his leg condition does not rise to the level of imminent danger. As my esteemed colleague Magistrate Judge David E. Homer has observed,
Nelson's continued complaints of infection in his leg have previously been held insufficient to establish an imminent danger. See Nelson v. Scoggy, No. 06-CV-1146 (NAM/DRH), 2009 WL 5216955, at *2-4 (N.D.N.Y. Dec.30, 2009) (dismissing the case since Nelson had received adequate medical care for his leg and the failure of the wound to heal was the result of Nelson's own acts of interference with the treatment provided and his self-mutilation); see also Cash v. Berstein, No. 09-CV-1922 (BSJ/HBP), 2010 WL 5185047, at *3 (S.D.N.Y. Oct.26, 2010) aff'd, 2010 WL 5222126 (S.D.N.Y. Dec.12, 2010) (Dkt. No.Nelson v. Warren, 2011 WL 7445581, at * 4 (footnote omitted). In that case plaintiff similarly complained of the medical care he received for his leg condition while confined to Marcy and asserted that he was exposed imminent serious physical harm as a result thereof, allegations that were rejected by both Magistrate Judge Homer and Judge Suddaby in revoking plaintiff's IFP status in that case and issuing a bar order.
18-1 at 6-11). Nelson alleges imminent danger in part because of the inadequate care resulting in a gangrenous condition. As continued complaints of infection and gangrene, in light of the prior dismissal in Nelson v. Scoggy, are insufficient to establish imminent danger, such contentions cannot presently be used to help Nelson escape the three-strikes provision.
Judge Homer also observed that "[i]t appears that [Nelson] uses the names David J. Cash and Dennis Nelson interchangeably. In his complaint ... the ... DIN[ ] assigned to [plaintiff] by ... [DOCS] is 94-B-0694 ... [which] is [also] assigned to Dennis Nelson." Nelson v. Warren, 2011 WL 7445581, at * 4 n.3 (quoting Cash v. Berstein, No. 09-CV-1922 (BSJ/HBP), 2010 WL 5185047, at *3 n. 3 (S.D.N.Y. Oct. 26, 2010)).
In Nelson v. Wright, No. 9:10-CV-0997 (N.D.N.Y. filed Aug. 18, 2010), filed the very next day after the Warren case was commenced, Nelson again complained about the medical treatment he was receiving at Marcy for his left leg ulcer, also alleging that he was in imminent danger of serious physical injury due to infection and deep vein thrombosis of the left leg. See id. at Dkt. No. 1. In a report and recommendation relating to the defendants' motion to dismiss the complaint in that action Magistrate Judge Randolph F. Treece, another distinguished colleague, observed that attachments to plaintiff's complaint indicated that
Mr. Nelson is a diabetic with an ulcer on his lower extremity. He also has a DVT of his lower extremity. Mr. Nelson has received medical evaluation and treatment for these conditions. However, progress toward improvement of these conditions has been hampered by noncompliance with recommended treatments.Nelson v. Wright, 2011 WL 6031392, at *3. In view of the foregoing, Judge Treece stated that "[a] prisoner who declines medical treatment cannot turn around and sue the medical professional whose judgment the prisoner has questioned and even defied." Id. (citing, inter alia, Jones v. Smith, 784 F.2d 149, 151-52 (2d Cir.1986) (affirming lower court ruling that a prisoner who declines medical treatment cannot establish an Eighth Amendment claim for medical deliberate indifference)) (other citations omitted). Judge Treece therefore recommended dismissal of plaintiff's amended complaint on this basis, and on the ground that plaintiff failed to demonstrate the personal involvement of the defendant in the alleged constitutional violation, a recommendation that was adopted in full by Chief District Judge Gary L Sharpe. 2011 WL 6030994.
DVT is treated with warfarin and regular monitoring of blood work. He has refused these treatments at times. As well, at times he refuses dressing changes for the ulcer on his leg. He has been noted to tamper with the dressing on the ulcer and may be getting external contamination from self inoculation with feces.
The medical staff at Marcy are attending to Mr. Nelson's medical problems in spite of his noncompliance with treatment recommendations and undermining of his care. He does not have gangrene of the extremity, but he is at risk of such.
After careful review of the record before the court, I have concluded that there is nothing to suggest that plaintiff's leg ulcer condition had materially deteriorated by the time that he filed this lawsuit, just four months later, and therefore find no basis to disagree with those judges who have previously determined that Nelson's chronic leg wound is insufficient to support the imminent danger exception. Indeed, a review of plaintiff's medical records reveals that during the time that he was housed at Marcy, Nelson received daily medical attention for his left leg ulcer. Although the condition of the wound varied at times, the record shows that the principal cause of such variance was plaintiff's frequent refusal of the prescribed treatment as well as his self mutilation. In the month immediately preceding plaintiff's filing of this action, he was prescribed and received daily whirlpool treatment in addition to the daily change of the wound dressing. Despite plaintiff's refusal of dressing changes on three separate occasions during the month of December 2010, as well as his refusal to fully participate in the prescribed whirlpool treatment on at least three occasions, improvement of the previously observed necrosis was noted in his AHR on December 15, 2010. Although plaintiff's complaint alleges that he was suffering an imminent threat of serious physical harm due to his leg condition, Nelson refused treatment again on December 29, 2010, the day after filing of this lawsuit, and there is no medical condition posing imminent danger to his health noted in his medical chart on December 30, 2010 upon his transfer out of Marcy into another prison facility, or at any time within the following months.
In sum, a careful review of the record now before the court, even when viewed in a light most favorable to the plaintiff, discloses no basis for concluding at the time this action was filed he was exposed to imminent danger of serious physical injury. Plaintiff has therefore failed to demonstrate his entitlement to this narrow exception to the PLRA's three-strike statutory provision.
IV. SUMMARY AND RECOMMENDATION
Plaintiff, a persistent litigant in this and other courts, brings this action to challenge defendants' failure to provide adequate medical treatment for his chronic left leg condition. A review of the plaintiff's litigation history reveals that without dispute, he has incurred three or more strikes falling within 28 U.S.C. § 1915(g). The record further fails to disclose a basis to conclude that at the time this action was filed he was in imminent danger of serious physical injury, even under the arguably relaxed standard announced by the Second Circuit in Chavis. A review of plaintiff's litigation history and his conduct during the course of this action makes it clear that to the plaintiff, litigation is a form of recreation of the type which the PLRA's three strikes provision was intended to curb. Plaintiff's repeated filing of actions in this and other courts not only unduly harasses prison officials, but burdens already over-taxed court resources and those of the Office of the Attorney General, which is called upon to defend against such claims.
Based upon the foregoing, it is hereby respectfully
RECOMMENDED that plaintiff's in forma pauperis status be REVOKED, and he be required to pay the required filing fee within thirty days of the issuance of an order adopting this report and recommendation, and that his complaint be dismissed without further order of the court in the event of his failure to pay the statutory $350 filing fee within that time period; and it is further hereby
RECOMMENDED, that the substantive portions of defendants' summary judgment motion (Dkt. No. 25) be held in abeyance, and that in the event the plaintiff does pay the required filing fee, that the matter be returned to me for consideration of the remaining portions of defendants' motion.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. Dated: August 13, 2012
Syracuse, NY
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David E. Peebles
U.S. Magistrate Judge