U.S. District Court, Western District of New York
Poor Person Status
Pettus v. Oakes
Background: The prisoner civil rights case is before the court for a determination as to whether the plaintiff’s in forma pauperis status should be revoked. Another federal district court judge issued a decision in which he noted that James Pettus had filed in excess of 48 civil actions in the four federal district courts within New York, found that the claims against defendant Ben Oakes should be severed and transferred to the Western District of New York, and made no ruling on the plaintiff’s in forma pauperis status on the severed and transferred claims against Oakes. On July 20, 2009, the court granted permission to proceed in forma pauperis under the imminent danger exception to 28 U.S.C. §1915(g) with regard to the claims of discontinuance of his pain medication. He continues to allege Oakes withdrew pain medication from him and also has added claims of deliberate indifference to his serious medical need against a facility nurse and the doctor supervising Oakes, a claim that a white supremacist operated within the Southport Correctional Facility and a claim that he was subject to corporeal punishment, torture and hate crimes.
In December, based on the plaintiff’s allegations, the court directed defense counsel to have Corrections Officer Craig Skelly examined for a tattoo on his upper body depicting, as the plaintiff described it, a black baby with a rope around its neck. Counsel had the inspection done and filed a declaration indicating no such tattoo was found, nor was any tattoo of a baby, anyone with a rope around his neck nor anyone who could be considered to be of African descent. Defense counsel then brought to the court’s attention the fact that the plaintiff had accumulated “three strikes” pursuant to the Prison Litigation Reform Act. In such a case, a prisoner litigant may not proceed without the pre-payment of the full filing fee, unless he can demonstrate successfully that he is under imminent danger of serious physical injury.
Ruling: The plaintiff has exaggerated his claims to fit within the “three-strike” rule and is not entitled to in forma pauperis status as an exception to that rule. The plaintiff’s in forma pauperis status is revoked, and the plaintiff must pay the applicable filing fee within 30 days.
James Pettus, pro se, and Gary M. Levine, Assistant New York State Attorney general, for the defendants