Bradshaw v. Annucci

• Docket Number: 9:23-CV-0602 (MAD/ML)
• Decision Date: 24 July 2023
• Parties: JAY BRADSHAW, Plaintiff, v. ANTHONY ANNUCCI, et al., Defendants.
• Court: U.S. District Court — Northern District of New York

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JAY BRADSHAW, Plaintiff, v. ANTHONY ANNUCCI, et al., Defendants.

No. 9:23-CV-0602 (MAD/ML)

United States District Court, N.D. New York

July 24, 2023

APPEARANCES:

JAY BRADSHAW

08-A-3654

Plaintiff, pro se

DECISION AND ORDER

MAE A D'AGOSTINO, United States District Judge.

I. INTRODUCTION

Pro se plaintiff Jay Bradshaw commenced this action by filing a complaint asserting claims pursuant to 42 U.S.C. § 1983 ("Section 1983"), together with an application to proceed in forma pauperis ("IFP"), and a request for preliminary injunctive relief. Dkt. No. 1 ("Compl."); Dkt. No. 2 ("IFP Application"); Dkt. No. 4 ("Preliminary Injunction Motion").^[1]Plaintiff, who is incarcerated at Great Meadow Correctional Facility, has not paid the filing fee for this action.

II. IFP STATUS

Where a plaintiff seeks leave to proceed IFP, the Court must determine whether the plaintiff has demonstrated sufficient economic need to proceed without prepaying, in full, the Court's filing fee of four hundred and two dollars ($402.00).^[2] The Court must also determine whether the "three strikes" provision of 28 U.S.C. § 1915(g) ("Section 1915(g)") bars the plaintiff from proceeding IFP and without prepayment of the filing fee.^[3] More specifically, Section 1915(g) provides as follows:

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.

28 U.S.C. § 1915(g). If the plaintiff is indigent and not barred by Section 1915(g), the Court must consider the sufficiency of the claims stated in the complaint in accordance with 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A.

In this case, plaintiff has demonstrated economic need through his IFP Application, and has filed the inmate authorization form required in the Northern District of New York. See Dkt. Nos. 2, 3. Thus, the Court must determine whether the "three strikes" rule of Section 1915(g) bars plaintiff from proceeding with this action IFP.

A. Determination of "Strikes"

Plaintiff is a frequent litigator, having commenced, in addition to this action, at least twenty-five previously filed civil actions in the district courts in the Second Circuit since 2008. See PACER Case Locator (last visited July 18, 2023). The following is a list of those actions: (1) Bradshaw v. McQueen, No. 08-CV-5518 (S.D.N.Y. filed June 18, 2008); (2) Bradshaw v. Officer Banks, No. 09-CV-0966 (S.D.N.Y. filed Feb. 4, 2009); (3) Bradshaw v. Brown, No. 13-CV-4308 (E.D.N.Y. filed July 31,2013); (4) Bradshaw v. The City of New York, No. 15-CV-2166 (E.D.N.Y. filed Apr. 13, 2015); (5) Bradshaw v. The City of New York, No. 15-CV-4638 (S.D.N.Y. filed June 10, 2015); (6) Bradshaw v. The City of New York, No. 15-CV-5481 (S.D.N.Y. filed July 10, 2015); (7) Bradshaw v. The City of New York, No. 15-CV-7074 (S.D.N.Y. filed Sept. 8, 2015); (8) Bradshaw v. The City of New York, No. 15-CV-8252 (S.D.N.Y. filed Oct. 20, 2015); (9) Bradshaw v. The City of New York, No. 15-CV-9031 (S.D.N.Y. Nov. 17, 2015); (10) Bradshaw v. The City of New York, No. 17-CV-1199 (S.D.N.Y. filed Feb. 16, 2017); (11) Bradshaw v. The City of New York, No. 17-CV-1168 (E.D.N.Y. filed Feb. 27, 2017); (12) Bradshaw v. The City of New York, No. 18-CV-8215 (S.D.N.Y. filed Sept. 7, 2018) ("Bradshaw v. The City of New York IX'); (13) Bradshaw v. Locke, No. 19-CV-428 (N.D.N.Y. filed April 10, 2019) ("Bradshaw v. Locke"); (14) Bradshaw v. Burns, No. 19-CV-931 (N.D.N.Y. filed July 31, 2019) ("Bradshaw v. Burns"); (15) Bradshaw v. Annucci, No. 20-CV-6083 (W.D.N.Y. filed Feb. 6, 2020); (16) Bradshaw v. Piccolo, No. 20-CV-6106 (W.D.N.Y. Feb. 18, 2020); (17) Bradshaw v. Piccolo, No. 20-CV-6368 (W.D.N.Y. filed June 4, 2020); (18) Bradshaw v. Annucci, No. 20-CV-6548 (W.D.N.Y. Sept. 29, 2020); (19) Bradshaw v. Piccolo, No. 21-CV-6050 (W.D.N.Y. filed Jan. 19, 2021); (20) Bradshaw v. Gordon, No. 21-CV-0645 (N.D.N.Y. filed June 3, 2021) ("Bradshaw v. Gordon"); (21) Bradshaw v. Uhler, No. 21-CV-0776 (N.D.N.Y. filed July 8, 2021) ("Bradshaw v. Uhler'); and (22) Bradshaw v. Marshal, No. 21-CV-0826 (N.D.N.Y. filed July 21, 2021) ("Bradshaw v. Marshal"); (23) Bradshaw v. Annucci, No. 21-CV-0901 (N.D.N.Y. filed Aug. 11, 2021) ("Bradshaw v. Annucci"); (24) Bradshaw v. Brand, No. 21-CV-0942 (N.D.N.Y. filed Aug. 20, 2021) ("Bradshaw v. Brand"); and (25) Bradshaw v. Bishop, No. 22-CV-0094 (GTS/ML) (N.D.N.Y. filed Feb. 2, 2022) ("Bradshaw v. Bishop").^[4]

Upon review of these actions, and consistent with the determinations reached by the Honorable Brenda K. Sannes in Bradshaw v. Locke and Bradshaw v. Burns, by the Honorable Glenn T. Suddaby in Bradshaw v. Gordon and Bradshaw v. Uhler, and by this Court in Bradshaw v. Marshal, this Court once again finds that, as of the date that plaintiff commenced this action, he had acquired at least four "strikes."^[5] As a result, plaintiff's IFP Application must be denied unless it appears that the "imminent danger" exception to the "three strikes" rule set forth in Section 1915(g) is applicable to this action.

B. Applicability of the "Imminent Danger" Exception

The "imminent danger" exception protects a prison inmate exposed to potential serious physical injury from the consequences of his earlier mistakes in filing frivolous litigation. Generally speaking, the allegations relevant to this inquiry "are those in which [plaintiff] describes physical injury, threats of violence, and deprivation of medical treatment." Chavis v. Chappius, 618 F.3d 162, 165 (2d Cir. 2010). The Second Circuit has described the nature of the Court's inquiry regarding imminent danger as follows: "although the feared physical injury must be serious, we should not make an overly detailed inquiry into whether the allegations qualify for the exception, because § 1915(g) concerns only a threshold procedural question, while [s]eparate PLRA provisions are directed at screening out meritless suits early on." Id. at 169-70 (quoting Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007)) (internal quotation marks omitted).

"[F]or a prisoner to qualify for the imminent danger exception, the danger must be present when he files his complaint - in other words, a three-strikes litigant is not excepted from the filing fee if he alleges a danger that has dissipated by the time a complaint is filed." Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009); see also Polanco v. Hopkins, 510 F.3d 152 (2d Cir. 2007); Akassy v. Hardy, 887 F.3d 91, 96 (2d Cir. 2018). However, "allegations of past violence can satisfy the imminent danger exception when, for example, the past harms are part of an ongoing pattern of acts." Carter v. New York State, No. 20-CV-5955, 2020 WL 4700902, at *1 (S.D.N.Y. Aug. 12, 2020) (citing Chavis, 618 F.3d at 170 (holding that "[a]n allegation of a recent brutal beating, combined with three separate threatening incidents, some of which involved officers who purportedly participated in that beating, is clearly the sort of ongoing pattern of acts that satisfies the imminent danger exception.")).

In addition, "§ 1915(g) allows a three-strikes litigant to proceed [IFP] only when there exists an adequate nexus between the claims he seeks to pursue and the imminent danger he alleges." Pettus, 554 F.3d at 296. In deciding whether such a nexus exists, the Second Circuit has instructed the courts to consider "(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 298-99.

In this case, the complaint alleges that at the time of filing, plaintiff had been continuously confined in the Residential Rehabilitation Unit ("RRU") for one year, where he was scheduled to remain housed for at least an additional year. Compl., ¶¶ 221,233, 248, 259-260, 303. The complaint further alleges that plaintiff is confined in his cell for all but two hours each day, and had not received, throughout the year that he was confined in the RRU, an individual rehabilitation plan or private mental health therapy, despite a history of selfharm and ongoing anxiety and depression associated with his confinement status. Id., ¶¶ 307-313, 332-340. The complaint also identifies several incidents of plaintiff being assaulted by other inmates, alleges that he is likely to be harmed in the future if he continues to be placed in a double-bunk cell, and further alleges that he was informed three days before the complaint was filed that he would be placed in a double-bunk cell "as soon as possible." Id., ¶¶ 96-179.

At this stage of the proceeding, the Court finds that the allegations in the complaint plausibly suggest that plaintiff was "under imminent danger of serious physical injury" when he signed his complaint on April 17, 2023. See e.g., Lindsey v. Hoem, 799 Fed.Appx. 410, 412 (7th Cir. 2020) ("Lindsey's first complaint alleges that prison staff have placed Lindsey in danger of imminent physical harm by failing to treat his PTSD. Suicidal ideation and a risk of self-harm, particularly for a mentally ill prisoner like Lindsey in prolonged segregation, satisfy the statutory imminent-danger exception that the court adopted in its sanction order." (citing, inter alia, Sanders v. Melvin, 873 F.3d 957, 960 (7th Cir. 2017)); Abreu v. Lira, No. 12-CV-1385 (NAM/DEP), Dkt. No. 5 (N.D.N.Y. Feb. 28, 2013) (granting ...