Lettieri v. City of Binghamton et al, No. 3:2024cv00074 - Document 7 (N.D.N.Y 2024)

Court Description: DECISION & ORDER: It is hereby ORDERED that the Report-Recommendation, dkt. # 4 is adopted. It is further ORDERED that if Plaintiff wishes to proceed with this action, he must pay the $405.00 filing and administrative fee within thirty (30) da ys of the date of this Order. If Plaintiff fails to pay the $405.00 fees by that date, the Clerk of Court shall dismiss the case without prejudice and without further order of Court. The Court will consider, in a separate decision, Magistrate Judge Lovric's recommendation that a pre-filing injunction be issued against the Plaintiff. Signed by Chief Judge Brenda K. Sannes on 4/9/2024. (Copy served upon pro se plaintiff via regular mail) (nmk)

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Lettieri v. City of Binghamton et al Doc. 7 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK __________________________________________ DAVID C. LETTIERI, Plaintiff, v. 3:24-CV-74 (BKS/ML) CITY OF BINGHAMTON; CITY OF BINGHAMTON CODE ENFORCEMENT; and BINGHAMTON POLICE, Defendants. ___________________________________________ Brenda K. Sannes, Chief U.S. District Judge DECISION & ORDER Plaintiff filed this action pursuant to 42 U.S.C. § 1983, alleging that Defendants, the City of Binghamton, New York and two municipal departments in that City, violated his constitutional rights by failing to protect his home from unlawful seizure and destruction at the hands of “squatters.” He seeks “$1,000,0000,000 for civil rights violations and a new house built.” The Court referred the matter to the Hon. Miroslav Lovric, United States Magistrate Judge, for a Report-Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c)). The Report-Recommendation and Order, dated January 26, 2024, denies Plaintiff’s motion to proceed in forma pauperis with prejudice and recommends that the Court order Plaintiff to pay the $405.00 filing fee within thirty days or face dismissal of the case without 1 Dockets.Justia.com prejudice and without further order of the Court. See dkt. # 4. Judge Lovric finds that Plaintiff failed properly to complete the form seeking leave to proceed in forma pauperis and has thus failed to demonstrate economic need. Noting that Plaintiff is an inmate, however, Judge Lovric also explored whether the “three strikes” provision in 28 U.S.C. § 1915(g) bars Plaintiff from proceeding in this action in forma pauperis. Judge Lovric noted that Plaintiff had filed seventy-seven previous cases, a number of them in the Northern District of New York, but most of the others either in the Western District of New York or the District of Ohio. Finding that the “three strikes” provision applied, Judge Lovric concluded that Plaintiff needed to demonstrate that the “imminent danger exception” applied if he hoped to proceed without paying the filing fee in this case. Judge Lovric examined the allegations in the Complaint and found that no such exception applied. Finally, after examining the Plaintiff’s extensive and vexatious litigation history, Judge Lovric recommended that the Court refer the matter to the undersigned to consider issuing a filing injunction for Plaintiff. Plaintiff filed objections to the Report-Recommendation. See dkt. # 5. W hen a party objects to a magistrate judge’s Report-Recommendation, the Court makes a “de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” See 28 U.S.C. § 636(b)(1). After such a review, the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.” Id. Having reviewed the record de novo and having carefully considered Plaintiff’s 2 objections, the Court accepts and adopts the recom mendation of Judge Lovric for the reasons stated therein. Plaintiff has not identified any valid objection to Magistrate Judge Lovric’s determinations: that the “three strikes” provision applies and that Plaintiff’s claim, seeking damages from an alleged December 31, 2022 event, does not fall within the “imminent danger exception.” Accordingly, it is hereby: ORDERED that the Report-Recommendation, dkt. # 4 is adopted; and it is f urther ORDERED that if Plaintiff wishes to proceed with this action, he must pay the $405.00 filing and administrative fee within thirty (30) days of the date of this Order. If Plaintiff fails to pay the $405.00 fees by that date, the Clerk of Court shall dismiss the case without prejudice and without further order of Court. The Court will consider, in a separate decision, Magistrate Judge Lovric’s recommendation that a pre-filing injunction be issued against the Plaintiff. IT IS SO ORDERED. Dated: April 9, 2024 3

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