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Akassy v. Hardy

United States Court of Appeals, Second Circuit

April 4, 2018

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 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.

          Motions submitted: January 17, 2018

         Motions by plaintiff pro se, a New York State prisoner, for leave to proceed in forma pauperis in three appeals challenging judgments of the United States District Court for the Southern District of New York, Colleen McMahon, Chief Judge, each of which, pursuant to the three-strikes provision of 28 U.S.C. § 1915(g), denied him leave to bring suit in forma pauperis, dismissed his complaint without prejudice to his filing a new action with payment of the filing fee, and barred him from filing future actions in forma pauperis while a prisoner unless he is under imminent threat of serious physical injury. Plaintiff argues principally that he has accumulated fewer than three strikes, contending that the dismissals of four of his prior actions on statute-of-limitations grounds based on the allegations of his complaints did not constitute strikes under § 1915(g), and that the dismissals of his four ensuing appeals as frivolous should be counted as no more than one strike because the dismissals were implemented in a single order. Because we conclude that plaintiff has more than three strikes and has not met § 1915(g)'s exception to application of the three-strikes rule, we deny his motions for leave to proceed in forma pauperis and we dismiss his appeals.

         Motions denied; appeals dismissed.

          Hugues-Denver Akassy, Dannemora, New York, Plaintiff-Appellant pro se.

          Before: KATZMANN, Chief Judge, KEARSE and POOLER, Circuit Judges.

          KEARSE, Circuit Judge:

         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"), 28 U.S.C. § 1915(g), denied Akassy permission to proceed in forma pauperis, dismissed his complaint without prejudice to his filing a new action with payment of the filing fee, and barred him from bringing future actions IFP while a prisoner unless he is under imminent threat of serious physical injury. Akassy moves in this Court for leave to prosecute his appeals in forma pauperis, contending principally that the district court erred in concluding that he had previously incurred as many as three strikes. We have consolidated these appeals for purposes of ruling on these motions. Having concluded that Akassy has more than three strikes and has not shown that he is in imminent danger of serious physical injury, we deny his motions for in forma pauperis status and dismiss the appeals.

         Although a prisoner who does not have the financial resources to prepay docketing fees may be allowed to proceed in forma pauperis, see 28 U.S.C. §§ 1915(a), (b), "the PLRA contains a 'three-strikes' rule that bars prisoners from proceeding IFP if they have a history of filing frivolous or malicious lawsuits, " with an exception provided for a prisoner who is in imminent danger of serious physical injury. Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009) ("Pettus"). The three-strikes rule provides that:

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).

         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 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, 2017 WL 6387729, at *1 (S.D.N.Y. June 16, 2017) (internal quotation marks omitted).

         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 28 U.S.C. § 1915(g) in Hardy and Simmons, dated July 27, 2017, at 3. The court denied Akassy's motions to proceed in forma pauperis, dismissed his complaints under the three-strikes rule, and barred Akassy from filing future actions in forma pauperis while a prisoner unless under imminent danger of serious physical injury. The court stated that these rulings were "without prejudice" to Akassy's "commence[ment of] a new action"--even as a prisoner--"by paying the filing fee, " id. at 3 & n.2, but noted that even such a fee-paid action would be ...


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