August Term 2022

(Submitted: May 22, 2023| Decided: June 30, 2023)

Docket No. 22-1134

KEVIN GRIFFIN,

Plaintiff-Appellant,

v.

CHARLES CARNES, TOWN OF CRAWFORD SUPERVISOR,

Defendant-Appellee. ______________

Before: POOLER, WESLEY, PARK Circuit Judges; 1

_________________

KEVIN GRIFFIN, pro se, Dannemora, NY, for Plaintiff-Appellant.

KARA J. CAVALLO, J&G Law, LLP, Walden, NY, for Defendant- Appellee. _________________ PER CURIAM:

Plaintiff-Appellant Kevin Griffin, pro se and incarcerated, appeals from the dismissal of his 42 U.S.C. § 1983 action. The district court dismissed his complaint, concluding that Griffin was barred from proceeding in forma pauperis (“IFP”) because he had accumulated three “strikes” under 28 U.S.C. § 1915(g) of the Prison Litigation Reform Act (“PLRA”). See Griffin v. Carnes, No. 21-cv-11111, 2022 WL 1304463, at *1 (S.D.N.Y. May 2, 2022). Section 1915(g) bars a prisoner from proceeding IFP, absent a showing of imminent danger, if on three or more occasions while incarcerated, he has brought an action or an appeal that was “dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g).

This appeal asks us to consider whether (1) a res judicata dismissal and (2) a dismissal of an entire complaint on several alternative grounds—one of which qualifies as a strike under existing precedent—can constitute strikes under Section 1915(g). We hold that they can and, in this case, do. We therefore affirm the district court’s conclusion that Griffin was barred under the PLRA from proceeding IFP.

2 BACKGROUND

Griffin, incarcerated and proceeding pro se, brought this action against Charles Carnes, the supervisor of the Town of Crawford, alleging that Carnes wrongfully fired him from his position as a town police officer.

Griffin moved for leave to proceed IFP. The district court ordered Griffin to show cause why his motion should not be denied under the PLRA’s three strikes provision. See Griffin v. Carnes, No. 21-cv-11111, 2022 WL 523625, at *1 (S.D.N.Y. Feb. 22, 2022). Following his response, the district court denied Griffin’s request, concluding that he had not alleged that he was “‘under imminent danger of serious physical injury,’” 28 U.S.C. § 1915(g), and had accumulated three strikes based on the dismissals of prior claims and appeals he had by then pursued while incarcerated: Griffin v. DiNapoli, No. 16-cv-914, 2017 WL 3835334 (N.D.N.Y. Aug. 30, 2017) (Griffin I); Griffin v. DiNapoli, No. 17-2887, 2018 WL 11341638 (2d. Cir. Mar. 15, 2018) (Griffin II); Griffin v. DiNapoli, No. 21-cv-282, 2021 WL 5370057 (N.D.N.Y. Nov. 18, 2021) (Griffin III).

These prior actions centered on Griffin’s claim that the New York State Comptroller unlawfully denied him disability benefits. First, in Griffin I, the district court granted the defendant’s motion to dismiss under Federal Rule of

3 Civil Procedure 12(b)(6), holding that Griffin’s claim (1) was barred by res judicata because he had unsuccessfully litigated his claim in state court; (2) was untimely under Section 1983’s three-year statute of limitations; and (3) failed to allege facts sufficient to state a claim for relief. See 2017 WL 3835334, at *6–7.

Second, in Griffin II, we affirmed the dismissal of Griffin I, concluding that the appeal “lack[ed] an arguable basis in either law or in fact.” 2018 WL 1134163