Booker v. Tedesco et al

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DIQUAN BOOKER,
Plaintiff,
9:25-CV-1323
v. 	(AMN/ML)
OFFICER TEDESCO, et al.,
Defendants.
APPEARANCES:
DIQUAN BOOKER
Plaintiff, pro se
16-A-1691
Marcy Correctional Facility
P.O. Box 3600
Marcy, NY 13403
HON. LETITIA JAMES 	SUSANNA M. KLOSE, ESQ.
New York State Attorney General 	Ass't Attorney General
Attorney for Dinello, Zaki, and Corigliano
The Capitol
Albany, NY 12224
MIROSLAV LOVRIC
United States Magistrate Judge
REPORT-RECOMMENDATION AND ORDER
I. 	INTRODUCTION
Plaintiff Diquan Booker commenced this action by filing a pro se civil rights complaint
pursuant to 42 U.S.C. § 1983 ("Section 1983"), together with an application to proceed in
Case 9:25-cv-01323-AMN-ML Document 28 Filed 05/28/26 Page 1 of 10

2
forma pauperis ("IFP"). Dkt. No. 1 ("Compl."); Dkt. Nos. 3, 7 ("IFP Application").
By Decision and Order entered on October 10, 2025, this Court granted plaintiff’s IFP
Application and found that his Eighth Amendment failure-to-protect claims against defendants
Tedesco and Yager survived sua sponte review and required a response. See generally,
Dkt. No. 10 (“October 2025 Order”).
Following the completion of service, counsel for the defendants filed an answer to the
complaint along with a motion to revoke plaintiff’s IFP status and conditionally dismiss the
pleading pursuant to 28 U.S.C. § 1915(g). Dkt. No. 23 (“Answer”); Dkt. No. 24 ("Motion to
Revoke"). Plaintiff has filed a letter notifying the Court that he is hospitalized and intends to
prosecute this case when his health issue is resolved, which the Court liberally construes as
a request for an extension of time to respond to the Motion to Revoke. See Dkt. No. 27
(“Extension Request"). For the reasons explained below, the Court recommends that the
Motion to Revoke be denied, and, accordingly, that the Extension Request be denied as
unnecessary.
II. 	MOTION TO REVOKE
A. 	Relevant Legal Standard
28 U.S.C. § 1915(g), often referred to as the "three strikes" rule, provides as follows:
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.
Case 9:25-cv-01323-AMN-ML Document 28 Filed 05/28/26 Page 2 of 10

3
28 U.S.C. § 1915(g).
"The manifest intent of Congress in enacting this . . . provision was to deter the filing of
multiple, frivolous civil rights suits by prison inmates." Ross v. Smith, No. 9:18-CV-0039
(GLS/TWD), 2019 WL 5197222, at *1 (N.D.N.Y. July 8, 2019) (citing Tafari v. Hues, 473 F.3d
440, 443-44 (2d Cir. 2007) (citing Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir. 1997))), report
and recommendation adopted by 2019 WL 4126434 (N.D.N.Y. Aug. 30, 2019). "The question
of whether the dismissal of a prior action constitutes a strike for purposes of § 1915(g) is a
matter of statutory interpretation, and as such a question for the Court." Id.
B. 	Summary of the Motion to Revoke
In support of the Motion to Revoke, defendants have identified the following four
lawsuits previously brought by plaintiff which they contend were adjudicated on grounds that
constitute a "strike" under 28 U.S.C. § 1915(g): (1) Booker v. O’Brien, No. 19-CV-3864, Dkt.
No. 28 (E.D.N.Y. Oct. 16, 2019) ("Action 1"); (2) Booker v. Flint, No. 9:22-CV-0776, Dkt. No. 6
(N.D.N.Y. Sept. 2, 2022) (“Action 2”); (3) Booker v. Doe, 9:23-CV-0128, Dkt. No. 15 (N.D.N.Y.
June 26, 2023) (“Action 3”); (4) Booker v. Doe, 9:23-CV-00451, Dkt. No. 8 (N.D.N.Y. June 26,
2023) (“Action 4”).
Defendants further argue that the imminent danger exception to Section 1915(g) does
not apply in this case because plaintiff’s allegations of wrongdoing are based on past harm,
and the complaint does not include any allegations that plaintiff feared “physical injury” when
he brought the action. Dkt. No. 24-6 at 4-8.
Case 9:25-cv-01323-AMN-ML Document 28 Filed 05/28/26 Page 3 of 10

4
C. 	Analysis
1. 	Action 1
Action 1 was a civil rights action filed in the Eastern District of New York wherein
plaintiff asserted claims against a state court judge and his court-appointed attorney based on
allegations that his attorney failed to adequately represent him in a criminal proceeding and
the trial judge refused his request for a new attorney. See Action 1, Dkt. No. 1; Dkt. No. 28 at
2-3. By Memorandum & Order entered on October 17, 2019, the Honorable Joanna Seybert
granted plaintiff’s IFP application and sua sponte dismissed the federal claims in the
complaint with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii), with the exception of
plaintiff's Section 1983 claims seeking monetary damages against Judge Obrien, which were
dismissed without prejudice for lack of subject matter jurisdiction. See Action 1, Dkt. No. 28
at 5-12. In light of the dismissal of plaintiff’s federal claims, Judge Seybert expressly declined
to exercise supplemental jurisdiction over any remaining state law claims plaintiff may have
asserted and dismissed any such claims without prejudice. Id.
As an initial matter, Second Circuit law is clear that “a prisoner's entire ‘action or
appeal’ must be dismissed on a § 1915(g) ground to count as a strike under the PLRA.”
Escalera v. Samaritan Vill., 938 F.3d 380, 382 (2d Cir. 2019) (explaining that “counting a
partial § 1915(g) dismissal as a strike could result in the anomalous situation where a
prisoner succeeds on some claims yet still accrues a strike if others are dismissed on §
1915(g) grounds”). Moreover, the Second Circuit has never held that the dismissal of action
(or, in this case, a portion of an action) on immunity grounds constitutes a “strike” for
purposes of 28 U.S.C. § 1915(g). See Mills v. Fischer, 645 F.3d 176, 177 n.2 (2d Cir. 2011)
Case 9:25-cv-01323-AMN-ML Document 28 Filed 05/28/26 Page 4 of 10

5
(“The criteria for accumulating strikes under § 1915(g) track two of the three grounds upon
which ‘the court shall dismiss [a] case’ if they exist, § 1915(e)(2)(B)(i)-(ii), but do not include
the third ground of ‘seek[ing] monetary relief against a defendant who is immune from such
relief,’ § 1915(e)(2)(B)(iii).”); see also Byrd v. Shannon, 715 F.3d 117, 126 (3d Cir. 2013)
(“[S]uing an immune defendant [is] a ground that does not support the accrual of a strike
under § 1915(g)”); Bonano v. Grant, No. 25-CV-2808, 2025 WL 2307592, at *4 (S.D.N.Y. Aug.
11, 2025) (“Although the docket sheet in Vasquez, 03-CV-8189, suggests that the action was
resolved entirely on strike grounds, the dismissal order itself states that some claims are
dismissed based on sovereign immunity, which is not listed in Section 1915(g) as a strike
ground. . . . Vasquez thus appears to be a ‘mixed dismissal’ that does not qualify as a strike
because the entire action was not dismissed on Section 1915(g) grounds.”); Thompson v.
DEA, 492 F.3d 428, 435-37 (D.C. Cir. 2007) (holding that dismissals for lack of subject matter
jurisdiction are not 28 U.S.C. § 1915(g) strikes and suggesting that sovereign immunity
dismissals are likewise not strikes). In addition, the law in this Circuit is clear that an order
dismissing all federal claims asserted in a complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
is not a "strike" when the complaint also includes state law claims that are dismissed for lack
of subject matter jurisdiction. See Escalera, 938 F.3d at 383-84.
Judge Seybert’s Order expressly found that the Eleventh Amendment barred any
Section 1983 claim for money damages against the state court judge and dismissed plaintiff’s
Section 1983 claims against his court-appointed attorney on state actor grounds. See Action
1, Dkt. No. 28, at 5-10. Furthermore, Judge Seybert was clear in her decision not to exercise
supplemental jurisdiction over any intended state law claims. See Action 1, Dkt. No. 28, at
Case 9:25-cv-01323-AMN-ML Document 28 Filed 05/28/26 Page 5 of 10

6
10. Thus, the Court finds the reasoning in Escalera applicable to the dismissal order in Action
1, and that it therefore does not constitute a "strike." See also Talley v. Wetzel, 15 F.4th 275
(3d Cir. 2021) (holding, where federal claims were dismissed for failure to state a claim, but
the pendent state-law claims were dismissed based on the district court's decision to not
exercise supplemental jurisdiction over the state-law claims, that the dismissal of the action
does not count as a PLRA strike); Fourstar v. Garden City Group, Inc., 875 F.3d 1147, 1152
(D.C. Cir. 2017) ("When a district court has declined to exercise supplemental jurisdiction
over state-law claims, the court has not dismissed the state-law claims for failure to state a
claim, nor has the court dismissed the state-law claims as frivolous or malicious. Therefore, a
case in which a court declines to exercise supplemental jurisdiction over state-law claims
does not count as a strike.") (Kavanaugh, J.); Harris v. Harris, 935 F.3d 670, 674 (9th Cir.
2016) (same); Cannon v. New York State Dep't of Corr. & Cmty. Supervision, No. 23-CV-
0837, 2023 WL 2898665, at *1 (S.D.N.Y. Apr. 10, 2023) (finding that an order dismissing all of
a plaintiff's federal claims for failure to state a claim and declining to exercise supplemental
jurisdiction "over any state law claims he may have, including his slander claim" was a mixed
dismissal under Escalera and therefore not a strike (quotation marks added from referenced
order)); Fate v. New York, No. 19-CV-4107, 2021 WL 1177966, at *4 (S.D.N.Y. Mar. 26, 2021)
(finding that an order dismissing a prisoner's complaint that was construed as "seek[ing]
release from custody and monetary damages" based on allegations of illegally extending his
sentence beyond his maximum release date was not a "strike" because the order also stated
that "to the extent that Plaintiff's 'submission [could] be construed as a § 2254 petition,' it had
to be dismissed" for failure to demonstrate exhaustion of available state court remedies).
Case 9:25-cv-01323-AMN-ML Document 28 Filed 05/28/26 Page 6 of 10

7
Accordingly, the Court finds that plaintiff did not accrue a strike from the dismissal
order entered in Action 1.
2. 	Action 2
Action 2 involved a complaint that was filed shortly after plaintiff commenced a
separate action against two of the same officials. See Action 2, Dkt. No. 1 (N.D.N.Y. filed July
25, 2022); Booker v. Flint, No. 9:22-CV-0600, Dkt. No. 2 (N.D.N.Y. filed May 17, 2022)
(“Booker v. Flint I”). By Decision and Order entered on September 2, 2022, Judge D’Agostino
granted plaintiff’s IFP application in Action 2, reviewed the complaint for sufficiency in
accordance with 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), dismissed certain of
plaintiff’s Section 1983 claims as duplicative of the claims asserted in Booker v. Flint I, and
dismissed the remaining claims for failure to state a claim upon which relief may be granted,
without prejudice to amendment and re-filing in Booker v. Flint I. See Action 2, Dkt. No. 6.
Importantly, Judge D’Agostino did not dismiss plaintiff’s Section 1983 claims in Action
2 as frivolous or malicious. Thus, the dismissal of the Section 1983 claims in Action 2 without
prejudice to re-filing in plaintiff’s earlier filed action had the same force and effect as a
dismissal without prejudice to re-filing in the existing action. See also Cannon v. New York
State Dep't of Corr. & Cmty. Supervision, No. 23-CV-0837, 2023 WL 2898665, at *4 (S.D.N.Y.
Apr. 10, 2023) (“Plaintiff brought other actions that were dismissed voluntarily, dismissed as
duplicative of another pending action, or dismissed for failure to prosecute, none of which
qualify as strikes.”); Toliver v. Colvin, No. 12-CV-00227V(F), 2016 WL 11258222, at *9
(W.D.N.Y. Sept. 28, 2016) (“Although dismissal of an action as duplicative of another action is
not among the specifically enumerated strikes under § 1915(g), and the Second Circuit has
Case 9:25-cv-01323-AMN-ML Document 28 Filed 05/28/26 Page 7 of 10

8
not addressed whether the dismissal of an action solely on the basis that it is duplicative of
an earlier action constitutes a strike for purposes of the three strikes rule, the Second Circuit's
instruction that ‘the term ‘frivolous’ refers to the ultimate merits of the case’ strongly implies
that the dismissal of an action merely because the action is duplicative of an earlier action is
not, by itself, sufficient to qualify as a strike under § 1915(g); rather, the earlier action must
have been dismissed on the merits.”), report and recommendation adopted as modified by
2017 WL 547963 (W.D.N.Y. Feb. 10, 2017).
Moreover, as the Second Circuit recently explained, “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).’” Cotton v. Noeth,
96 F.4th 249, 256 (2d Cir. 2024) (quoting Lomax v. Ortiz-Marquez, 590 U.S. ––––, 140 S. Ct.
1721 (2020)). A plaintiff’s subsequent failure to file an amended complaint after a dismissal
with leave to amend also does not convert the dismissal order to “strike” status. Id. (holding
that “there was no dismissal for a reason enumerated in Section 1915(g)” where the plaintiff
did not “file an amended complaint”).
Although plaintiff filed an amended complaint in Booker v. Flint I after the dismissal
order in Action 2, the amended complaint in that action did not include allegations similar to
the allegations in Action 2 with respect to Corrections Officer John Doe and an alleged event
that occurred on June 7, 2022. Compare Action 2, Dkt. No. 1 with Booker v. Flint I, Dkt. No.
19. Indeed, the amended complaint in Booker v. Flint I did not even name Corrections Officer
John Doe as a defendant. See Booker v. Flint I, Dkt. No. 19. Thus, the reasoning in Cotton
is applicable in this case.
Case 9:25-cv-01323-AMN-ML Document 28 Filed 05/28/26 Page 8 of 10

9
Accordingly, the Court finds that plaintiff did not accrue a strike from the dismissal
order entered in Action 2.
III. 	EXTENSION REQUEST
Based on the foregoing, the Court recommends that defendants’ motion to revoke
plaintiff's IFP status and conditionally dismiss his complaint for failure to pay the filing fee be
denied.1 Accordingly, plaintiff’s Extension Request is denied as unnecessary.
IV. 	CONCLUSION
WHEREFORE, it is hereby
ORDERED that plaintiff’s Extension Request (Dkt. No. 27) is DENIED as set forth
above; and it is further
RECOMMENDED that defendants’ motion to revoke plaintiff's IFP status pursuant to
28 U.S.C. § 1915(g) and conditionally dismiss the complaint for failure to pay the filing fee
(Dkt. No. 24) be DENIED; and it is further
ORDERED that the Clerk provide plaintiff with a copy of this Report-Recommendation
and Order, along with copies of the unpublished decisions cited herein in accordance with the
Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file
written objections to the foregoing report.2 Such objections shall be filed with the Clerk of the
1 Because the Court has found that plaintiff did not accumulate a “strike” in Action 1 or Action 2, the Court need
not address whether plaintiff accumulated a “strike” in Action 3 or Action 4.
2 If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three
additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date
the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If
the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended
until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(c).
Case 9:25-cv-01323-AMN-ML Document 28 Filed 05/28/26 Page 9 of 10

10
Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing
Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72.
Dated: May 28, 2026
Binghamton, NY
Case 9:25-cv-01323-AMN-ML Document 28 Filed 05/28/26 Page 10 of 10