19-1154
    Clay v. Lee
                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT
                                 SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 25th day of September, two thousand twenty.

    Present:
                ROBERT D. SACK,
                ROBERT A. KATZMANN,
                RICHARD C. WESLEY,
                      Circuit Judges.
    ________________________________________

    DANIEL CLAY,

                        Plaintiff-Appellant,
                  v.                                                  No. 19-1154

    WILLIAM A. LEE, Superintendent, Greenhaven,
    L. FRANCO, Deputy Superintendent of Programs,
    C. TALIAFERRO, Mental Health Unit Chief, L.
    BACINO, STP Coordinator, SARGEANT
    WAHLQUIST, STP/SHU Sargeant, SARGEANT
    COUSIN, SARGEANT SURPRENANT,

                         Defendants-Appellees,

    COMMISSIONER BRIAN FISCHER,
    Department of Correctional Service, JOHN OR
    JANE DOE, Department of Mental Health,
    JOHN DOE, STP/SHU Sargeant,

                      Defendants.
    ________________________________________
   For Plaintiff-Appellant:                                      Daniel Clay, pro se, Beacon, NY.

   For Defendants-Appellees:                                     David Lawrence, III (Steven C.
                                                                 Wu, Barbara D. Underwood, on
                                                                 the brief), for Letitia James,
                                                                 Attorney General of the State of
                                                                 New York, Albany, NY.

       Appeal from a judgment of the United States District Court for the Southern District of

New York (Karas, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED that Appellant’s in

forma pauperis (“IFP”) status is REVOKED pursuant to 28 U.S.C. § 1915(g) (the “three-strike

rule”). Appellant is ORDERED to pay the docketing fee or make a showing in a letter brief of

no more than five (5) pages that he was in imminent danger at the time he filed his notice of appeal.

Failure to pursue either option within thirty (30) days of the entry of this order will result in the

dismissal of the appeal.

       Appellant Daniel Clay, proceeding pro se, appeals the district court’s dismissal of his 42

U.S.C. § 1983 action against corrections officers and officials for failure to state a claim. The

district court did not deny Appellant’s IFP status on appeal. However, prior to filing his notice

of appeal, Appellant brought two other § 1983 actions in the Northern District of New York that

were dismissed for failure to state a claim, see Clay v. D’Silva (“Clay I”), No. 9:09-cv-1245 (GTS)

(DRH), 

(N.D.N.Y. Mar. 25, 2011); Clay v. Schwebler (“Clay II”), No. 9:13-

cv-1314 (BKS) (CFH), 

(N.D.N.Y. Oct. 22, 2015); as well as an appeal that this

I suggest following BB Rule 10.8.3 for this and the Clay IV cite because the orders are

unreported.Court dismissed as frivolous, see Motion Order, Clay v. Schwebler (“Clay III”), No.

15-3823 (2d Cir. Mar. 24, 2016), Dkt. No. 35. Also prior to filing his instant notice of appeal,

Appellant was denied IFP status in another district court proceeding pursuant to § 1915(g) based
upon these three earlier dismissals. See Decision and Order, Clay v. Cuomo (“Clay IV”), No. 19-

cv-0086 (BKS)(N.D.N.Y. June 27, 2019), ECF No. 9. At issue now is whether Appellant may

continue proceeding IFP in the present appeal given his litigation history.   We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

       Federal Rule of Appellate Procedure 24(a)(3) provides:

       A party who was permitted to proceed in forma pauperis in the district-court action,
       or who was determined to be financially unable to obtain an adequate defense in a
       criminal case, may proceed on appeal in forma pauperis without further
       authorization, unless:

       (A) the district court—before or after the notice of appeal is filed—certifies that the
       appeal is not taken in good faith or finds that the party is not otherwise entitled to
       proceed in forma pauperis and states in writing its reasons for the certification or
       finding; or

       (B) a statute provides otherwise.

Fed. R. App. P. 24(a)(3) (emphasis added). In turn, 28 U.S.C. § 1915(g), such a statute here,

provides:

       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).

       We agree with the Clay IV court that Clay I, II, and III qualify as strikes under § 1915(g)

because those proceedings were each dismissed on the grounds that they were either frivolous or

failed to state a claim.   Appellant had not yet accumulated these strikes when he filed his

complaint in the present action; however “[t]he use of the word ‘bring’ [in § 1915(g)] offers a clear


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indication that the provision goes into effect—and bars the suit under the in forma pauperis

section—at the moment the plaintiff files his complaint or notice of appeal.”     Harris v. City of

New York, 

, 21–22 (2d Cir. 2010) (second emphasis added); see also Shepherd v.

Annucci, 

, 94 (2d Cir. 2019) (“This rule [§ 1915(g)] prohibits prisoner-litigants from

bringing further actions or appeals IFP if they have brought at least three prior actions that were

dismissed because they were frivolous, malicious, or failed to state a claim upon which relief could

be granted.” (internal quotation marks, alterations, and citations omitted) (emphasis added)).

        This rule “bars [three-strikes] prisoners from proceeding IFP . . . unless the exception for

imminent danger applies.” Pettus v. Morgenthau, 

, 296 (2d Cir. 2009); see also

Dubuc v. Johnson, 

, 1210 (10th Cir. 2003) (“[Section] 1915(g)’s provisions are not

jurisdictional in nature but contain a condition precedent which prevents a review of the merits of

a three-strike-prisoner-plaintiff’s claims, except under extraordinary circumstances, until the

prisoner has prepaid the applicable fees.”). To establish the imminent danger exception, “there

must be a nexus between the imminent danger a three-strikes prisoner alleges to obtain IFP status

and the legal claims asserted . . . .”   

. Appellant has not previously had

the opportunity to argue that the exception applies to him, so he now must either establish that he

qualifies or pay the docketing fee.

        Accordingly, we REVOKE Appellant’s IFP status. The merits of this appeal will not be

reviewed unless, within thirty (30) days of the entry of this order, Appellant either pays the

docketing fee or makes a showing in a letter brief of no more than five (5) pages that he was in

imminent danger at the time he filed his notice of appeal. Failure to pursue either option within


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thirty (30) days of the entry of this order will result in the dismissal of the appeal.


                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk of Court




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