Cotton v. Noeth

96 F.4th 249

Maurice COTTON, Plaintiff-Appellant, v. Joseph H. NOETH, Anne Marie McGrath, J. Wolcott, Joey Clinton, D. Clary,T. Barber, Michael Capra, M. Kopp, C. Jamison, S. DeGroat, Defendants.

Docket No. 20-1644-pr

Docket No. 20-2710-pr

August Term 2023

United States Court of Appeals, Second Circuit

Argued: September 21, 2023

Decided: March 14, 2024

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK (Sinatra, J.)

Rona Proper (Gregory Dubinsky, on the brief), Holwell Shuster & Goldberg, for Plaintiff-Appellant.

Sarah L. Rosenbluth, Assistant Solicitor General, for Letitia James, Attorney General of the State of New York, as Amicus Curiae.¹

Before: Walker, Chin, and Nathan, Circuit Judges.

Judge Walker concurs in part and dissents in part in a separate opinion.

Chin, Circuit Judge:

On December 6, 2018, plaintiff-appellant Maurice Cotton filed this case pro se in the United States District Court for the Western District of New York (Sinatra, J.), alleging, inter alia, that he was wrongfully denied a transfer from one New York prison facility to another and retaliated against for filing grievances in connection with the transfer request. He sought declaratory and injunctive relief and monetary damages. Cotton also filed with the complaint a motion for leave to proceed in forma pauperis ("IFP"). See 28 U.S.C. § 1915(b) (allowing indigent prisoners to pay filing fees through a structured payment plan linked to their prison accounts). The district court denied Cotton's motion for IFP status, concluding that he had accumulated "at least three" strikes under the Prison Litigation Reform Act (the "PLRA"), 28 U.S.C. § 1915(g). Cotton appeals.

We hold that the district court erred in denying Cotton's request for IFP status because it incorrectly held that each of the three lawsuits it considered counted as a PLRA strike. Accordingly, we VACATE and REMAND for further proceedings.

BACKGROUND

Cotton is serving a twenty-five-year sentence at the Green Haven Correctional Facility ("Green Haven") for attempted murder, assault, and criminal possession of a weapon. He has filed numerous lawsuits during his time in prison; the district court counted at least nineteen in federal courts in the State of New York. On December 6, 2018, Cotton filed the instant lawsuit under 42 U.S.C. § 1983, seeking declaratory and injunctive relief and monetary damages from corrections officials at Green Haven ("defendants"). He alleged that he was wrongfully denied a transfer to Sing Sing Correctional Facility, where there was a program by which he could obtain a master's degree from the State University of New York or the City University of New York. Cotton further alleged that defendants retaliated against him for filing grievances connected to the transfer request. Cotton also moved for leave to proceed IFP.

On March 6, 2020, the district court denied Cotton's motion for IFP status; it concluded that Cotton had previously filed "at least three" lawsuits that were dismissed as either frivolous or malicious or for failure to state a claim, thereby constituting "strikes" under the PLRA. The PLRA bars a prisoner from proceeding IFP after receiving three such strikes, unless he is "under imminent danger of serious physical injury." See 28 U.S.C. § 1915(g).

The district court specifically considered the following lawsuits: (1) Cotton v. McCarthy, No. 06 Civ. 477, 2009 WL 3165606 (W.D.N.Y. Sept. 2009) ("McCarthy"), where the court dismissed Cotton's federal claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure and declined to exercise supplemental jurisdiction over his related state-law claims; (2) Cotton v. Titone, No. 91 Civ. 697 (not reported) (W.D.N.Y. Nov. 8, 1991) ("Titone"), where the court dismissed Cotton's complaint for failure to comply with Rule 8 of the Federal Rules of Civil Procedure; and (3) Cotton v. Lema, No. 08 Civ. 326 (not reported) (W.D.N.Y. Nov. 18, 2008) ("Lema"), where the court dismissed Cotton's complaint as premature pursuant to 28 U.S.C. § 1915(e)(2)(B), relying on Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (holding that a Section 1983 plaintiff may not seek damages for an allegedly unconstitutional conviction or sentence unless the conviction or sentence has been invalidated).

On April 2, 2020, Cotton moved for reconsideration. On May 18, 2020, while the motion for reconsideration was pending, Cotton filed a notice of appeal -- the operative notice for the instant appeal. On July 16, 2020, the district court denied the motion for reconsideration. The court ordered Cotton to pay the filing fee by August 15, 2020, or the case would be dismissed without prejudice. The court directed the Clerk of Court to close the case if the fee was not paid by that date. Cotton did not pay the filing fee, but the district court did not issue a final order of dismissal, nor did the Clerk of the Court close the case.

Even assuming the district court's order denying the IFP motion was not a final order, and this appeal is therefore an interlocutory appeal, this Court has appellate jurisdiction under the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See, e.g., Sears, Roebuck & Co. v. Charles W. Sears Real Est., Inc., 865 F.2d 22, 23 (2d Cir. 1988) (per curiam) ("An interlocutory appeal may be taken from an order denying leave to proceed in forma pauperis under [Cohen]." (collecting cases)).

DISCUSSION

We review a district court's denial of IFP status pursuant to 28 U.S.C. § 1915 de novo. Shepherd v. Annucci, 921 F.3d 89, 93 (2d Cir. 2019) (citation omitted).

Cotton contends, and the Attorney General agrees, that the district court erred in finding that the McCarthy and Titone lawsuits counted as strikes under the PLRA. First, we address whether those two lawsuits constitute PLRA strikes. We find that they do not. Second, although that ruling is a sufficient basis to vacate and remand, for the reasons discussed below, we nonetheless address whether the Lema dismissal pursuant to Heck v. Humphrey also counts as a PLRA strike. We conclude that it does not. Accordingly, we vacate the district court's denial of Cotton's request for IFP status and remand for further proceedings.

I. Applicable Law

The relevant provision of the PLRA 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); see, e.g., Chavis v. Chappius, 618 F.3d 162, 167 (2d Cir. 2010) ("Section 1915(g) . . . denies [IFP status] to so-called 'frequent filers,' prisoners who have repeatedly brought legal claims dismissed as frivolous, malicious, or not stating a claim; such litigants must pay the filing fee upfront."); Harris v. City of N.Y., 607 F.3d 18, 21 (2d Cir. 2010) ("Prisoner-plaintiffs who have accumulated three strikes are prohibited by the PLRA from bringing further actions or appeals in forma pauperis." (citation omitted)).

II. Application

We address each of the three lawsuits in turn.

1. The McCarthy Lawsuit

In McCarthy, Cotton sued the City of Buffalo and city officials, asserting a Section 1983 claim and related state-law claims. 2009 WL 3165606 at *2. The dismissal was then affirmed by this Court. The district court below concluded that this dismissal constituted a PLRA strike because it was dismissed under Rule 12(b)(6). But McCarthy was a "mixed dismissal"; the court dismissed only Cotton's federal claim under Rule 12(b)(6) and declined to exercise supplemental jurisdiction over his state-law claims. This Court has held that to constitute a strike, "a prisoner's entire 'action or appeal' must be dismissed on a § 1915(g) ground . . . ." Escalera v. Samaritan Vill., 938 F.3d 380, 382 (2d Cir. 2019) (holding that a "mixed dismissal" of state and federal claims was not a strike, where the state-law claims were dismissed not on the merits but for lack of subject matter jurisdiction). "Accordingly, mixed dismissals are not strikes." Id. McCarthy was therefore not a PLRA strike.

2. The Titone Lawsuit

The district court below was unable to find a decision and order in Titone, but relied on the docket sheet to conclude that the dismissal of the lawsuit constituted a strike because the dismissal was for failure to comply with Rule 8, and Cotton was given an opportunity to amend his complaint. No. 91 Civ. 697 (not reported), Dkt. 4. The Supreme Court has held, however, that where a complaint is dismissed but a plaintiff is given leave to amend the complaint, there is no strike "because the suit continues" and therefore "the court's action falls outside of Section 1915(g)." Lomax v. Ortiz-Marquez, 590 U.S. —, 140 S. Ct. 1721, 1724 n.4, 207 L.Ed.2d 132 (2020). A strike does accrue, however, if the plaintiff files an amended complaint and the amended complaint is dismissed for an enumerated reason. Although the Titone court allowed Cotton the opportunity to replead, he did not file an amended complaint and thus there was no dismissal for a reason enumerated in Section 1915(g). See Titone, No. 91 Civ. 697 (not reported), Dkt. 4. Thus, Titone does not constitute a PLRA strike.

3. The Lema Lawsuit

Finally, in Lema, Cotton sued the State of New York, the City of Buffalo, and state and city officials, asserting a Section 1983 claim based on proceedings that preceded and followed his arrest and imprisonment. No. 08 Civ. 326 (not reported), Dkt. 5 at 1. The court dismissed Cotton's complaint, sua sponte, explaining -- twice -- that the case was premature. First, the Lema court wrote:

It may be that

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