Harris v. City Of N.Y., Docket No. 09-0081-pr.

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtKATZMANN, Circuit
Citation607 F.3d 18
PartiesTony HARRIS, Plaintiff-Appellant,v.CITY OF NEW YORK, Warden C-95, C.O. Miller, John Doe # 1, John Doe # 2, Defendants-Appellees.
Decision Date02 June 2010
Docket NumberDocket No. 09-0081-pr.

607 F.3d 18

Tony HARRIS, Plaintiff-Appellant,
v.
CITY OF NEW YORK, Warden C-95, C.O. Miller, John Doe # 1, John Doe # 2, Defendants-Appellees.

Docket No. 09-0081-pr.

United States Court of Appeals,
Second Circuit.

Argued: April 12, 2010.
Decided: June 2, 2010.


607 F.3d 19
Justine M. Mongan, Elizabeth S. Losey, (Jon Romberg, on the brief), Center for Social Justice, Seton Hall University School of Law, Newark, NJ, for Plaintiff-Appellant.

Karen M. Griffin, Assistant Corporation Counsel (Francis F. Caputo, Assistant Corporation Counsel, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellees.

Before: LEVAL, KATZMANN and B.D. PARKER, Circuit Judges.

KATZMANN, Circuit Judge:

This case calls upon us in principal part to interpret the “three strikes rule” of the

607 F.3d 20
Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g), which prohibits incarcerated prisoners from filing in forma pauperis in federal court if they have previously brought three or more actions or appeals that were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief could be granted. In the matter at hand, our task is to determine whether, pursuant to the three strikes rule, a district court should dismiss a prisoner-plaintiff's complaint if he has been released from prison subsequent to the filing of his complaint. We hold that dismissal by the district court in such circumstances is appropriate. We also conclude that the three strikes rule need not be raised by the defendant in the pleadings in order to serve as grounds for dismissal. In addition, in determining whether prior dismissals constitute “strikes” under § 1915(g), courts may rely on docket sheet entries if they indicate with sufficient clarity the grounds for dismissal of the prior suits. Finally, we determine that the Plaintiff-Appellant does not qualify for the imminent danger exception under § 1915(g). We affirm the district court's dismissal of the Plaintiff-Appellant's complaint, but vacate the court's order of dismissal and remand to allow the court to issue a new order of dismissal permitting the Plaintiff-Appellant to apply for in forma pauperis status as a non-incarcerated plaintiff if he chooses to refile his complaint.
I

Plaintiff-Appellant Tony Harris filed a complaint under 42 U.S.C. § 1983 on September 7, 2007. Harris was an inmate at the City of New York Department of Corrections facility at Riker's Island at the time. The complaint alleged, inter alia, that Harris was assaulted by approximately ten corrections officers at Riker's Island in New York City on or around July 14, 2005. Compl. at 2-3. Harris filed a grievance with prison authorities on July 15, 2005, additionally stating that his request for medical treatment for his injuries was denied. In an amended complaint filed March 14, 2008, Harris alleged that he was attacked again, in “January 2006 an[d] Spring 2007,” that he was “ass[a]ulted and taunted for filing suit by officers,” and that he suffered a ruptured eardrum, for which he was denied medical attention. Am. Compl. at 2-3. The amended complaint also alleged that he suffered a fractured jaw in the July 2005 attack. Id. at 3.

In tandem with his initial complaint, Harris sought leave to proceed in forma pauperis, which was granted by the court the same day the complaint was docketed. The defendants filed an answer to the amended complaint on August 5, 2008. The answer did not allege that Harris was in violation of the PLRA's three strikes rule. On September 30, 2008, the defendants sent a letter motion requesting that the court issue an order to show cause why Harris's in forma pauperis status should not be revoked under the three strikes rule (or, alternatively, hold a conference concerning that request). The defendants asserted that Harris had previously filed five claims or appeals constituting strikes under § 1915(g) while incarcerated.

On October 3, 2008 the district court issued an order to show cause instructing Harris to show, by October 30, 2008, why the court should not revoke his in forma pauperis status pursuant to the three strikes rule of 28 U.S.C. § 1915(g). On October 16, 2008, Harris filed a motion for leave to file non-prison service papers. He also filed an opposition to the order to show cause, asserting that he did not have three prior strikes and that he should not be deprived of in forma pauperis status under 28 U.S.C. § 1915(g) because, inter

607 F.3d 21
alia, he “remains [in] and has suffered imminent danger of serious injury.”

On October 27, 2008 the district issued an order revoking Harris's in forma pauperis status and dismissing his complaint without prejudice on the grounds that Harris had accumulated four strikes under the PLRA, was not entitled to in forma pauperis status, and had not paid any filing fees. Harris v. City of New York, 07-cv-7894 (S.D.N.Y. Oct. 27, 2008) (order of dismissal). The order stated that Harris could refile the case upon payment of the filing fee and court costs. Id. Harris, however, had apparently been released from prison in mid-2008, prior to the district court's order of dismissal.

Harris filed a timely notice of appeal to this Court, which appointed pro bono counsel to represent Harris on appeal. The motions panel instructed counsel to argue “(1) whether the ‘three strikes' provision of the Prison Litigation Reform Act of 1995 (‘PLRA’) applies to a prisoner who has been released from custody; and (2) if the PLRA three strikes provision does apply, whether the district court correctly determined that Appellant had four prior PLRA strikes.”

II

Under the PLRA, prisoner-litigants granted in forma pauperis status must pay the full amount of the filing fee to the extent they can afford to, as measured by the funds in their prison accounts. 28 U.S.C. § 1915(b)(1). The fees are paid through periodic debits from the plaintiff's prison account, which are forwarded to the court by the custodial agency. Id. § 1915(b)(2). There is an exception to the PLRA's payment structure: Prisoner-plaintiffs who...

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423 practice notes
  • Leshore v. Comm'r of Long Beach P.D., 10-CV-6067 (SJFVARL)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 21, 2012
    ...2010), and to construe them '"to raise the strongest arguments'" suggested. Chavis.Page 7618 F.3d at 170 (quoting Harris v. City of N.Y., 607 F.3d 18, 24 (2d Cir. 2010)); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Moreover, at the pleadings stage of the proceedi......
  • Clark v. Gardner, 9:17-CV-0366.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • June 22, 2017
    ...is able to do so, through periodic withdrawals from his inmate accounts." Id. (citing 28 U.S.C. § 1915(b) and Harris v. City of New York , 607 F.3d 18, 21 (2d Cir. 2010) ).Clark's submissions demonstrate economic need. Plaintiff has also filed the inmate authorization required in the Northe......
  • Villafane v. Sposato, CV 16-3674 (JFB) (AKT)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 22, 2017
    ...(quoting Chase Group Alliance LLC v. City of New York Department of Finance, 620 F.3d 146, 148 (2d Cir. 2010); Harris v. City of New York, 607 F.3d 18, 24 (2d Cir. 2010)) (citing Sims v. Blot, 534 F.3d 117, 133 (2d Cir. 2008)). The plaintiff must satisfy "a flexible 'plausibility standard.'......
  • Benyi v. New York, 3:20-CV-1463 (DNH/ML)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • March 23, 2021
    ...periodic withdrawals from his inmate accounts." Cash, 2010 WL 5185047, at *1 (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)). Upon review, the Court finds that Plaintiff has submitted a completed IFP application which has been certified by an appropr......
  • Request a trial to view additional results
421 cases
  • Leshore v. Comm'r of Long Beach P.D., 10-CV-6067 (SJFVARL)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 21, 2012
    ...2010), and to construe them '"to raise the strongest arguments'" suggested. Chavis.Page 7618 F.3d at 170 (quoting Harris v. City of N.Y., 607 F.3d 18, 24 (2d Cir. 2010)); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Moreover, at the pleadings stage of the proceedi......
  • Clark v. Gardner, 9:17-CV-0366.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • June 22, 2017
    ...is able to do so, through periodic withdrawals from his inmate accounts." Id. (citing 28 U.S.C. § 1915(b) and Harris v. City of New York , 607 F.3d 18, 21 (2d Cir. 2010) ).Clark's submissions demonstrate economic need. Plaintiff has also filed the inmate authorization required in the Northe......
  • Villafane v. Sposato, CV 16-3674 (JFB) (AKT)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 22, 2017
    ...(quoting Chase Group Alliance LLC v. City of New York Department of Finance, 620 F.3d 146, 148 (2d Cir. 2010); Harris v. City of New York, 607 F.3d 18, 24 (2d Cir. 2010)) (citing Sims v. Blot, 534 F.3d 117, 133 (2d Cir. 2008)). The plaintiff must satisfy "a flexible 'plausibility standard.'......
  • Benyi v. New York, 3:20-CV-1463 (DNH/ML)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • March 23, 2021
    ...periodic withdrawals from his inmate accounts." Cash, 2010 WL 5185047, at *1 (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)). Upon review, the Court finds that Plaintiff has submitted a completed IFP application which has been certified by an appropr......
  • Request a trial to view additional results

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