Lettieri v. Displine Hearing Officer et al

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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DAVID C. LETTIERI, 	)
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Plaintiff, 	)
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v. 	) 	No. 1:25-cv-12400-JEK
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DISCIPLINE HEARING OFFICER, et al., 	)
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Defendants. 	)
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MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION
KOBICK, J.
Plaintiff David Lettieri, proceeding pro se, filed a complaint on August 29, 2025 against
certain correction officers and administrators at FMC Devens, where he is serving his sentence.
ECF 1. He also moved for leave to proceed in forma pauperis that same day. ECF 2. On November
20, 2025, Magistrate Judge Levenson denied the motion without prejudice and directed Lettieri to
either pay the $405 filing fee or show good cause why he should not be required to do so by
December 18, 2025. ECF 7. He reasoned that under the so-called three-strikes provision of the
Prison Litigation Reform Act of 1995, Lettieri could not proceed in forma pauperis because he
had “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” and had not demonstrated
that he was “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g); see ECF 7,
at 2-3. On December 10, 2025, Judge Levenson likewise denied Lettieri’s second motion for leave
to proceed in forma pauperis, which he treated as a motion for reconsideration. ECF 9 (motion);
ECF 11 (order).
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On 	December 	22, 	2025, 	Judge 	Levenson 	issued 	a 	Report 	and 	Recommendation
recommending that this action be dismissed for failure to comply with the November 2025 order,
which required that Lettieri either pay the filing fee or demonstrate good cause for not doing so.
ECF 13. Lettieri filed an objection to this Report and Recommendation on January 5, 2026
asserting that the “imminent danger” exception to the three-strikes rule applies. ECF 16. As Lettieri
concedes, the three-strikes rule is applicable here because he has, while a prisoner, filed more than
three non-habeas actions that federal district courts, including this Court, have dismissed for failure
to state a claim upon which relief may be granted. ECF 7, at 2-3 (collecting cases and applying
three-strikes rule); see Lettieri v. Santander Bank N.A., No. 24-1781, 2025 WL 2823585, at *1 (1st
Cir. June 18, 2025) (affirming Lettieri’s “‘three-strikes’ status”). As a result, he cannot proceed
with this case without prepaying the filing fee unless he “is under imminent danger of serious
physical injury.” 28 U.S.C. § 1915(g).
Even construing his complaint and objection liberally, see Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam), Lettieri “has not met the imminent danger exception of § 1915(g),”
Reis v. Spectrum Health Sys., Inc., No. 13-1482, 2013 WL 12569246, at *1 (1st Cir. July 17, 2013).
Lettieri alleges in the complaint that certain defendants “threatened” to transfer him to another
facility where he could “be stabbed” and could not “yell,” while others “threaten[ed] to punch”
him. ECF 1, ¶¶ 7, 10-11. These alleged threats are “‘speculative and not imminent.’” Lettieri v.
Fed. Med. Ctr. Devens Mailroom, No. 25-cv-11174-AK, 2025 WL 2534266, at *2 (D. Mass. Sept.
3, 2025) (citation omitted). Lettieri separately argues in his objection that the standard imposed by
Judge Levenson for satisfying the imminent danger exception is too high and inconsistent with
Jackson v. Bolton, No. 23-1701, 2024 WL 314530 (6th Cir. Jan. 24, 2024). In that case, the Sixth
Circuit allowed a prisoner to proceed in forma pauperis where he alleged in his complaint that
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certain identified inmates had “threatened to kill him if he pursued his lawsuits against them” and
that he had found a “razor blade in his biscuit” soon after those threats. Jackson, 2024 WL 314530,
at *1-2. Lettieri’s factual allegations here lack the immediacy and specificity of the threats alleged
in Jackson. See Lettieri v. Wiggins, No. 25-cv-13250-IT, 2025 WL 3677120, at *2 (D. Mass. Dec.
18, 2025) (rejecting Lettieri’s comparison to Jackson). In concluding that Lettieri failed to meet
the imminent danger exception “vis-à-vis his claims in the complaint,” Judge Levenson also
properly looked to Lettieri’s complaint rather than the statements in his September 22, 2025
supplemental filing. ECF 7, at 3; see id. at 1-2; ECF 6, at 2; Pettus v. Morgenthau, 554 F.3d 293,
297 (2d Cir. 2009) (“there must be a nexus between the imminent danger a three-strikes prisoner
alleges to obtain [in forma pauperis] status and the legal claims asserted in his complaint”).
Having reviewed the Report and Recommendation and Lettieri’s objection, I agree with
Judge Levenson’s determination. Lettieri is subject to the three-strikes provision and has not
shown that he “is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Nor
has Lettieri paid the filing fee. Accordingly, this action is dismissed without prejudice for failure
to pay the filing fee. See Lettieri v. Fed. Med. Ctr. Devens, No. 25-cv-11372 JEK, 2025 WL
3442631, at *2 (D. Mass. Dec. 1, 2025).
SO ORDERED.
/s/ Julia E. Kobick
JULIA E. KOBICK
Dated: January 13, 2026 	UNITED STATES DISTRICT JUDGE
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