UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________ DAVID C. LETTIERI, P l a i n t i f f , 3:24-CV-0475 v. (DNH/ML) DEP’T OF JUSTICE; and FEDERAL BUREAU OF INVESTIGATION, Defendants. _____________________________________________ A P P E A R A N C E S : O F C O U N S E L : DAVID C. LETTIERI Plaintiff, Pro Se Niagara County Jail 5526 Niagara Street Ex. Lockport, New York 149094
MIROSLAV LOVRIC, United States Magistrate Judge
ORDER and REPORT-RECOMMENDATION I. BACKGROUND A. Procedural History
Plaintiff David C. Lettieri (“Plaintiff”) commenced this civil rights action pro se on April 4, 2024, on a form complaint alleging that his rights were violated by Defendants Department of Justice and Federal Bureau of Investigation (collectively “Defendant s”). (Dkt. No. 1.) Plaintiff did not pay the filing fee for this action and sought leave to proceed in forma pauperis (“IFP”). (Dkt. Nos. 2, 3.) On April 24, 2024, the undersigned denied Plaintiff’s IFP application as
2 incomplete. (Dkt. No. 7.) On May 16, 2024, Plaintiff filed an amended application to proceed IFP (Dkt. No. 8) and Letter Request/Motion seeking discovery (Dkt. No. 9). B. Complaint
Construed as liberally 1
as possible, Plaintiff’s Compla int appears to allege that in November 2020, Defendants violated his rights. (See generally Dkt. No. 1.) The Complaint refers to a notarized statement (Dkt. No. 1 at 4-5) but none is attached to the Complaint.
Based on these factual allegations, Plaintiff appears to assert the following four claims: (1) a claim that his due process rights were violated; (2) a claim of excessive force; (3) a claim that Plaintiff did not receive a fair trial; and (4) a claim of unlawful seizure. (Id. at 3.) As relief, Plaintiff seeks $1,000,000 in damages and to get his phone back. (Id. at 5.)
Plaintiff seeks leave to proceed IFP. (Dkt. No. 8.) II. PLAINTIFF’S AMENDED A PPLICATION TO PROCEED IFP
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 five dollars ($405.00). 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. 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
1 The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
3 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 failed to demonstrate economic need through his IFP application, because he fails to provide the value of (1) the money he has in cash or in a checking or savings account (Dkt. No. 8 at ¶ 4), and (2) the three real estate properties he owns (id. at ¶ 5). Moreover, Plaintiff’s amended I FP application is the short form IFP application, which does not contain the certificate portion to be completed by an appropriate official at Plaintiff’s institution of incarceration pursuant to N.D.N.Y. L.R. 5.1.4(b)(1)(A). (Compare Dkt. No. 2, with Dkt. No. 8.) Thus, the amended IFP application does not comply with 28 U.S.C. § 1915(a)(2), which requires that an IFP request be accompanied by “a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint.”
2 28 U.S.C. § 1915(a)(2). As a result, the undersigned could deny Plaintiff’s amended IFP application without prejudice on these bases alone. However, as will be discussed below, because Plaintiff has three strikes and his Complaint does not allege that he was in imminent danger at the time of filing, his second amended IFP application is denied with prejudice.
2 The amended IFP application explicitly directs that if Plaintiff has “an account in the institution” in which he is incarcerated, he mu st attach to his IFP application “a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months for any institutional account in [his] name.” (Dkt. No. 8 at ¶ 1.)
4 Plaintiff has filed the inmate authorization form required in the Northern District of New York. (Dkt. No. 3.) Thus, the Court must determine whether the “three st rikes” rule of Section 1915(g) bars Plaintiff from proceeding with this action IFP.
A. Determination of “Strikes” Plaintiff is a frequent litigator, having commenced at least thirteen pro se actions in the Northern District of New York since August 30, 2023. In re Lettieri, 24-PF-0001, 2024 WL 1655374, at *2, n.1 (N.D.N.Y. Apr. 17, 2024) (Sannes, C.J.).
Upon review of those actions and actions filed by Plaintiff in other districts, and consistent with the determinations reached by Chief District Judge Brenda K. Sannes in Lettieri v. Vestal Police, 24-CV-0198, 2024, 1616330, at *2 (N.D.N.Y. Apr. 15, 2024) (Sannes, C.J.), the Honorable Hector Gonzalez in Lettieri v. Broome Cnty. Humane Soc’y , 20-CV-7777, 23-CV- 7830, 2023 WL 7017081, at *2 (E.D.N.Y. Oct. 25, 2023), denying recons., 2023 WL 8003478, (E.D.N.Y. Nov. 17, 2023), and the Honorable Lawrence J. Vilardo in Lettieri v. Broome Cnty. Humane Soc’y , 23-CV-1223, 2023 WL 9066861, at *2 (W.D.N.Y. Dec. 4, 2023), and Lettieri v. Auricchio, 23-CV-1121, 2023 WL 9066873, at *2 (W.D.N.Y. Dec. 4, 2023), this Court finds that, as of the date that Plaintiff commenced this action, he had acquired at least three “strikes.”
3 As a result, Plaintiff's IFP Application must be denied unless it appears that the “imminent danger” exception to the “three st rikes” rule set forth in Secti on 1915(g) is applicable to this action. 4
3 The actions in which Plaintiff acquired strikes are as follows: (1) Lettieri v. W. Dist. of N.Y., 23-CV-7508, Dkt. No. 28 (March 13, 2024); (2) Lettieri v. W. Dist. of N.Y., 23-CV-0770 (W.D.N.Y. Sept. 11, 2023), Dkt. No. 7; (3) Lettieri v. U.S. Dep’t of Justice , 23-CV-0866 (W.D.N.Y. Sept. 19, 2023), Dkt. No. 3; and (4) Lettieri v. Vilardo, 23-CV-6498 (W.D.N.Y. Sept. 21, 2023), Dkt. No. 3. 4 Before the Complaint in this action was filed, Plaintiff had been informed several times that he had accumulated three strikes. See, e.g., Lettieri v. Bonanno, 23-CV-6515, 2023 WL
5 B. Applicability of the “Imminent Danger” Exception The “imminent danger” excepti on 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 regardin g 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.” Chavis, 618 F.3d at 169-70 (quoting Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007)) (internal quotation marks omitted).
9184676, at *1 n.4 (W.D.N.Y. Dec. 18, 2023) (“Followi ng the filing of this action, this Court found Plaintiff had garnered three strikes under 28 U.S.C. § 1915(g), and, therefore, could not proceed IFP without showing that he is under “imminent danger of serious physical injury.”); Lettieri v Bonanno, 23-CV-1081, 2023 WL 9421209, at *2 (W.D.N.Y. Dec. 4, 2023) (internal citations omitted) (“The three strikes rule square ly applies here. In addition to this case, [Plaintiff] has filed more than 50 actions in this Court in the past year. At least three of those cases were dismissed because the defendants were immune from suit . . . . [Thus,] Lettieri has accumulated three strikes under 28 U.S.C. § 1915(g).”); Lettieri v. Auricchio, 23-CV-1121, 2023 WL 9066873, at *2 (W.D.N.Y. Dec. 4, 2023) (same); Lettieri v. Broome Cnty. Humane Soc’y , 23-CV-1223, 2023 WL 9066861, at *2 (W.D.N.Y. Dec. 4, 2023) (same); Lettieri v. Broome Cnty. Humane Soc’y , 23-CV-7777, 23-CV-7830, 2023 WL 8003478, at *1 (E.D.N.Y. Nov. 17, 2023) (“Plaintiff incorrectly argues that the pris on mailbox rule means that each of these two cases was deemed filed before he received the third dismissal relied upon by the Court to invoke the three-strikes rule.”); Lettieri v. Broome Cnty. Humane Soc’y , 23-CV-7777, 23-CV-7830, 2023 WL 7017081, at *2 (E.D.N.Y. Oct. 25, 2023) (“ Plaintiff falls within this prohibition because at least three of the cases that he has filed in the Western District on an in forma pauperis basis were dismissed sua sponte for failure to state a claim.”). Notwithstanding this information, Plaintiff falsely represented in the Complaint that he had not accumulated three strikes before the commencement of this action. (Dkt. No. 1 at 8.)
6 “[F]or a prisoner to qualify for the imminent danger exception, the danger must be present when he files his complaint – in other word s, 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, 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-strike s 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) whet her 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 over three years before filing this action, Defendants violated his civil rights. (Dkt. No. 1 at 5.) These allegations fail to plausibly suggest that Plaintiff was “under imminent danger of serious physical injury” when he signed his complaint on October 3, 2023. (Dkt. No. 1 at 11.) Therefore, Plaintiff is barred from proceeding IFP under Section 1915.
7 To the extent that Plaintiff pays the filing fee this matter shall be returned to the undersigned for a review of the Complaint pursuant to 28 U.S.C. § 1915A. Plaintiff’s Letter Motion (Dkt. No. 9) is denied without prejudice to refiling upon payment of the filing fee.
ACCORDINGLY, it is ORDERED that Plaintiff's amended IFP application (Dkt. No. 8) is DENIED; and it is further
ORDERED that Plaintiff’s Letter Reque st/Motion (Dkt. No. 9) is DENIED without prejudice; and it is further respectfully RECOMMENDED that should Plaintiff wish to proceed with this action, he be required to pay the $405.00 filing and administrative fees within thirty (30) days from the filing of an Order by the assigned District Judge adopting this Order and Report-Recommendation. It is recommended that should Plaintiff fail to pay the full filing and administrative fees within thirty (30) days of the date of such an order, the case be dismissed without prejudice and without further order of the Court; and it is further
ORDERED that the Clerk of the Court shall file a copy of this order and report- recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules. 5
5 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
8 NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. 6
Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
Dated: June __, 2024
Binghamton, New York
6
If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
Footnotes 1 Lettieri v. Fed. Bureau of Investigation (Lettieri I), No. 23-cv-1099 (GTS/ML) (N.D.N.Y. filed Aug. 20, 2023);
Lettieri v. Ne. Ohio Corr. Ctr. (Lettieri II), No. 23-cv-1136 (MAD/ML) (N.D.N.Y. filed Sep. 5, 2023); Lettieri v. Dep't of Justice (Lettieri III), No. 23-cv-1272 (BKS/ML) (N.D.N.Y. filed Oct. 12, 2023); Lettieri v. Garver (Lettieri IV), No. 23-cv-1421 (DNH/MJK) (N.D.N.Y. filed Nov. 15, 2023); Lettieri v. New York State Police (Lettieri V), No. 23-cv-1547 (TJM/ML) (N.D.N.Y. filed Dec. 11, 2023); Lettieri v. Brigueal (Lettieri VI), No. 23- cv-1597 (AMN/ML) (N.D.N.Y. filed Dec. 18, 2023); Lettieri v. City of Binghamton (Lettieri VII), No. 24-cv-74 (BKS/ML) (N.D.N.Y. filed Jan. 17, 2024); Lettieri v. Gaska (Lettieri VIII), No. 24-cv-102 (GTS/ML) (N.D.N.Y. filed Jan. 22, 2024); Lettieri v. Broome Cnty. Sheriffs (Lettieri IX), No. 24-cv-156 (LEK/ML) (N.D.N.Y. filed Jan. 31, 2024); Lettieri v. Vestal Police (Lettieri X), No. 24-cv-198 (BKS/ML) (N.D.N.Y. Feb. 9, 2024); Lettieri v. Matson (Lettieri XI), No. 24-cv-434 (GTS/ML) (N.D.N.Y. Mar. 27, 2024); Lettieri v. Schemit (Lettieri XII), No. 24-cv-474 (GTS/ML) (N.D.N.Y. Apr. 4, 2024); Lettieri v. Dep't of Justice (Lettieri XIII), No. 24-cv-475 (DNH/ ML) (N.D.N.Y. Apr. 4, 2024). 2 The “three strikes” provision of 28 U.S.C. § 1915(g) (“ Section 1915(g)”) bars Respondent from proceeding
IFP and without prepayment of the filing fee as he is a prisoner and 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). 3 This injunction would apply to, among other things, continued filings by Respondent as a pro se plaintiff in
any action filed by him in state court removed to this Court or filed by him in another U.S. District Court and transferred to this Court. See Sassower v. Starr, 338 B.R. 212, 218-19 & n.1 (S.D.N.Y. Bankr. 2006) (recognizing validity of pre-filing injunction expressly applying to actions removed from state courts to the Southern District of New York); Jenkins v. Kerry, 928 F. Supp. 2d 122, 126 (D. D.C. 2013) (noting that Southern District of Florida would apply its pre-filing injunction to case that was transferred there from the District for the District of Columbia); Petrols v. Boos, No. 10-cv-0777, 2012 WL 1193982, at *1, n.3, 2012 U.S. Dist. LEXIS 49785 (N.D. W. Va. Apr. 10, 2012) (“This pre-filing injunction does not preclude the plaintiff from filing an action in state court, but it does apply to cases filed in state court that are removed to this Court.”); Kissi v. Pramco, II, LLC, No. 09-cv-0267, 2009 WL 8636986, at *1, 2009 U.S. Dist. LEXIS 61425 (D. Md. Feb. 12, 2009) (applying District of Maryland's pre-filing injunction to case that had been transferred
from the District of Delaware). However, this injunction would not prohibit Respondent from filing a petition
for relief pursuant to 28 U.S.C. § 2254. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.
Footnotes 1 Unless noted, case law quotations in this order accept all alterations and omit internal quotation marks,
citations, and footnotes. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.
End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.
Footnotes 1 The complaint—and thus the official case caption—names “The Broome County Humane” instead of “The
Broome County Humane Society,” which is the entity that Lettieri seems to intend to sue. Docket Item 1 at 1, 5. The Clerk of the Court shall correct the caption accordingly. The other defendants named are the Department of Justice and the Federal Bureau of Investigation (“FBI”). Id. 2 The fee to file a civil action is $350.00. Effective May 1, 2013, the Judicial Conference of the United
States added an administrative fee of $50.00 to the cost of filing a civil lawsuit in district court. See September 2012 Report of the Proceedings of the Judicial Conference of the United States, available at http://www.uscourts.gov/about-federal-courts/reports-proceedings-judicial-conference-us. Effective December 1, 2020, this fee was increased to $52.00. See District Court Miscellaneous Fee Schedule, https://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule. 3 Those three cases are not the only ones filed by Lettieri that have been dismissed for reasons that likely
are “strikes.” See, e.g., Lettieri v. Daniels, Case No. 23-cv-867, Docket Item 3 (W.D.N.Y. Oct. 16, 2023) (dismissing complaint for failure to state a claim); Lettieri v. Auricchio, Case No. 23-cv-875, Docket Item 3 (W.D.N.Y. Oct. 11, 2023) (same); Lettieri v. Reynolds, Case No. 23-cv-925, Docket Item 4 (W.D.N.Y. Oct. 17, 2023) (same); Lettieri v. Dep't of Just., Case No. 23-cv-897, Docket Item 3 (W.D.N.Y. Oct. 10, 2023) (dismissing complaint due to prosecutorial immunity). In fact, none of Lettieri's civil complaints that this Court has screened under 28 U.S.C. §§ 1915(e)(2)(b) and 1915A have raised colorable claims. So Lettieri likely has many more than three strikes. But three are enough. 28 U.S.C. § 1915(g). 4 Three courts, including this one, have found that Lettieri has garnered three strikes under section 1915. See
Lettieri v. Vilardo, Case No. 23-cv-6563 (W.D.N. Y Oct. 10, 2023) (Wolford, C.J.) (denying Lettieri's motion to proceed IFP under the three strikes rule); Lettieri v. Broome Cnty. Humane Soc'y, 2023 WL 7017081, at *2-3
(E.D.N.Y. Oct. 25, 2023) (Gonzalez, J.) (same); Lettieri v. Hockwater, Case No. 23-cv-1123, Docket Item 3
(W.D.N.Y. Nov. 13, 2023) (Vilardo, J.) (same). 5 Lettieri alleges that “[t]he FBI [l]et the Broome County Humane Society [break] [i]nto [his] [h]ouse and take
whatever they wanted,” including “a rat.” Docket Item 1 at 5. He then alleges that “they” are “trying to extort money [f]or [i]llegal[ly] tak[ing] care of the [r]at,” although he does not clarify who “they” are. Id. Although it is difficult to understand the complaint in places, no part of it suggests that Lettieri was in any “imminent danger of serious physical injury” at the time of filing. 28 U.S.C. § 1915(g). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.
Footnotes 1 Lettieri's complaint, and thus the official case caption, misspelled Auricchio's name, which appears correctly
here. The Clerk of the Court shall correct the caption accordingly. 2 On June 14, 2023, a jury found Lettieri guilty on one count of enticement of a minor in violation of 18 U.S.C. §
2422(b). See United States v. Lettieri, Case No. 21-cr-20, Docket Items 146, 150 (W.D.N.Y. June 14, 2023). Auricchio represented Lettieri in this case from April 15, 2021, see id., Docket Item 17 (W.D.N.Y. Apr. 15, 2021), until March 3, 2022, id., Docket Item 38 (W.D.N.Y. Mar. 3, 2022). 3 The fee to file a civil action is $350.00. Effective May 1, 2013, the Judicial Conference of the United
States added an administrative fee of $50.00 to the cost of filing a civil lawsuit in district court. See September 2012 Report of the Proceedings of the Judicial Conference of the United States, available at http:// www.uscourts.gov/about-federal-courts/reports-proceedings-judicial-conference-us. Effective December 1, 2020, this fee was increased to $52.00. See District Court Miscellaneous Fee Schedule, https:// www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule. 4 Those three cases are not the only ones filed by Lettieri that have been dismissed for reasons that likely
are “strikes.” See, e.g., Lettieri v. Daniels, Case No. 23-cv-867, Docket Item 3 (W.D.N.Y. Oct. 16, 2023) (dismissing complaint for failure to state a claim); Lettieri v. Auricchio, Case No. 23-cv-875, Docket Item 3 (W.D.N.Y. Oct. 11, 2023) (same); Lettieri v. Reynolds, Case No. 23-cv-925, Docket Item 4 (W.D.N.Y. Oct. 17, 2023) (same); Lettieri v. Dep't of Just., Case No. 23-cv-897, Docket Item 3 (W.D.N.Y. Oct. 10, 2023) (dismissing complaint due to prosecutorial immunity). In fact, none of Lettieri's civil complaints that this Court has screened under 28 U.S.C. §§ 1915(e)(2)(b) and 1915A have raised colorable claims. So Lettieri likely has many more than three strikes. But three are enough. 28 U.S.C. § 1915(g). 5 Three courts, including this one, have found that Lettieri has garnered three strikes under section 1915. See
Lettieri v. Vilardo, Case No. 23-cv-6563, Docket Item 3 (W.D.N.Y. Oct. 10, 2023) (Wolford, C.J.) (denying
Lettieri's motion to proceed IFP under the three strikes rule); Lettieri v. Broome Cnty. Humane Soc'y, 2023
WL 7017081, at *2-3 (E.D.N.Y. Oct. 25, 2023) (Gonzalez, J.) (same); Lettieri v. Hockwater, Case No. 23- cv-1123, Docket Item 3 (W.D.N.Y. Nov. 13, 2023) (Vilardo, J.) (same). 6 Lettieri sues Auricchio for violation of his due process rights and for ineffective assistance of counsel. Docket
Item 1 at 5. He alleges that he was shown an “affidavit” that was purportedly signed by him but that he “[d]id not sign anything and can prove that the signature was [f]orged.” Id. at 8. He argues that this “show[s]” that Auricchio “committed a crime.” Id. Those assertions do not suggest that Lettieri was in any “imminent danger of serious physical injury” when he filed the complaint. See 28 U.S.C. § 1915(g). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.
Footnotes 1 The Court previously dismissed Plaintiff's April 30, 2020 complaint, which appears to have brought claims
arising from the same incident at Downstate Correctional Facility. See Carter v. Morges, No. 20-CV-3367 (CM) (S.D.N.Y. May 18, 2020). 2 Plaintiff may commence a new action by paying the filing fee. If Plaintiff does so, that complaint will be
reviewed under 28 U.S.C. § 1915A, which requires the Court to dismiss any civil rights complaint from a prisoner if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 3 The Court may bar any vexatious litigant (including a nonprisoner) from filing future actions (even if the filing
fee is paid) without first obtaining leave from the Court. See In re Martin-Trigona, 9 F.3d 226, 227-30 (2d Cir. 1993) (discussing sanctions courts may impose on vexatious litigants, including “leave of court” requirement). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.
Footnotes 1 The Clerk of Court is directed to amend the caption of this action as set forth herein. 2 Since November 2022, Plaintiff has filed approximately 60 civil actions and petitions in this Court. Judge
Vilardo recently found that Plaintiff has engaged in a pattern of abuse of the judicial process, In re: David C. Lettieri, Case No. 1:23-mc-32, Dkt. 1 (W.D.N.Y. Sept. 5, 2023) (“23-mc-32”), and should be sanctioned based on his vexatious litigation history, id. at Dkt. 11. Plaintiff was directed to show cause why he should not be precluded from filing any further actions in this Court for one year without first obtaining permission from the Court. Id. at Dkt. 11. 3 Because Plaintiff brings constitutional claims against a federal official, the Court construes his claims as
brought under Bivens. See Tavarez v. Reno, 54 F.3d 109, 109-10 (2d Cir. 1995) (“Although Tavarez brought the action under § 1983, the district court properly construed the complaint as an action under” Bivens.).
4 Following the filing of this action, this Court found that Plaintiff had garnered three strikes under 28 U.S.C. §
1915(g) and, therefore, could not proceed IFP without showing that he is under “imminent danger of serious physical injury.” See Lettieri v. Vilardo, Case No. 6:23-cv-06563-EAW, Dkt. 3 (W.D.N.Y. Oct. 10, 2023). 5 The spelling of this name is not clear. 6 Because the complaint is confusing, the Court quotes directly from it where appropriate. 7 See Jencks Act, 18 U.S.C. § 3500 (addressing timing of disclosure of statements of government witnesses). 8 See Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998) (“A
court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.” (internal quotation marks omitted)). 9 The Supreme Court has cautioned that the Bivens remedy should rarely be extended to new contexts. See
Ziglar v. Abbasi, 582 U.S. 120, 135-40 (2017). In light of Defendants’ immunity, the Court finds that a Bivens analysis is unnecessary but notes that it would be highly unlikely that it would extend to the context at issue here. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.
Footnotes 1 On June 14, 2023, a jury found Lettieri guilty on one count of enticement of a minor in violation of 18 U.S.C. §
2422(b). See United States v. Lettieri, Case No. 21-cr-20, Docket Items 146, 150 (W.D.N.Y. June 14, 2023). In the complaint, Lettieri appears to focus on Bonanno's actions at the September 7, 2023, court proceeding addressing Lettieri's motions for acquittal and a new trial. See id., Docket Item 166 (W.D.N.Y. Sept. 7, 2023). 2 The fee to file a civil action is $350.00. Effective May 1, 2013, the Judicial Conference of the United
States added an administrative fee of $50.00 to the cost of filing a civil lawsuit in district court. See September 2012 Report of the Proceedings of the Judicial Conference of the United States, available at http:// www.uscourts.gov/about-federal-courts/reports-proceedings-judicial-conference-us. Effective December 1, 2020, this fee was increased to $52.00. See District Court Miscellaneous Fee Schedule, https:// www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule. 3 Those three cases are not the only ones filed by Lettieri that have been dismissed for reasons that likely
are “strikes.” See, e.g., Lettieri v. Daniels, Case No. 23-cv-867, Docket Item 3 (W.D.N.Y. Oct. 16, 2023) (dismissing complaint for failure to state a claim); Lettieri v. Auricchio, Case No. 23-cv-875, Docket Item 3 (W.D.N.Y. Oct. 11, 2023) (same); Lettieri v. Reynolds, Case No. 23-cv-925, Docket Item 4 (W.D.N.Y. Oct. 17, 2023) (same); Lettieri v. Dep't of Just., Case No. 23-cv-897, Docket Item 3 (W.D.N.Y. Oct. 10, 2023) (dismissing complaint due to prosecutorial immunity). In fact, none of Lettieri's civil complaints that this Court has screened under 28 U.S.C. §§ 1915(e)(2)(b) and 1915A have raised colorable claims. So Lettieri likely has many more than three strikes. But three are enough. 28 U.S.C. § 1915(g).
4 Three courts, including this one, have found that Lettieri has garnered three strikes under section 1915. See
Lettieri v. Vilardo, Case No. 23-cv-6563 (W.D.N. Y Oct. 10, 2023) (Wolford, C.J.) (denying Lettieri's motion to proceed IFP under the three strikes rule); Lettieri v. Broome Cnty. Humane Soc'y, 2023 WL 7017081, at *2-3 (E.D.N.Y. Oct. 25, 2023) (Gonzalez, J.) (same); Lettieri v. Hockwater, Case No. 23-cv-1123, Docket Item 3 (W.D.N.Y. Nov. 13, 2023) (Vilardo, J.) (same). 5 Lettieri says that Bonanno “abused his position as an ‘officer’ of the [C]ourt by lying to a [j]udge [i]n the
courtroom.” Docket Item 1 at 9. He alleges that Bonanno knew or should have known that Lettieri's cell phone service provider was Verizon—not T-Mobile—and that saying otherwise during a court proceeding violated Lettieri's right to “[d]ue process.” Id. at 8. Those assertions do not suggest that Lettieri was in any “imminent danger of serious physical injury” when he filed the complaint. See 28 U.S.C. § 1915(g). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.
