Lettieri v. Facebook

Background

David C. Lettieri filed this action without a lawyer against Facebook. The opinion says he alleged negligence and diversity jurisdiction and requested permission to proceed without paying the filing fee. The complaint also alleged that Facebook violated New York Business Law § 394-ccc by failing to make it easy to complain about hateful conduct involving a fake Facebook profile created in 2015. The opinion says Facebook had been informed about the profile and responded that it was not Facebook’s problem.

Three-strikes rule

The court explained that the Prison Litigation Reform Act generally prevents a prisoner from proceeding without paying the filing fee if, on three or more prior occasions while incarcerated or detained, the prisoner brought federal actions that were dismissed as frivolous, malicious, or for failure to state a claim. This is known as the three-strikes provision in 28 U.S.C. § 1915(g). The exception applies when the prisoner shows that he faced imminent danger of serious physical injury when he filed the complaint.

The court also explained that a qualifying prior case generally must have been dismissed in its entirety for one of the listed reasons. Although immunity dismissals usually do not count as strikes, the court said an immunity dismissal can qualify in an exceptional case when the defense is clear from the complaint itself and shows that the plaintiff failed to state a claim or brought a frivolous action.

Court’s findings

The court reviewed Lettieri’s litigation history and found that he had filed at least 128 federal civil actions since 2022, including this action. The court identified at least three earlier cases that it determined qualified as strikes. In those cases, claims were dismissed based on judicial immunity, prosecutorial immunity, or both, and the court determined that the dismissals qualified as failures to state a claim under the exception described above.

The opinion also states that Lettieri had been denied permission to proceed without paying the filing fee under § 1915(g) in at least three other cases. It says that two federal districts had also entered pre-filing restrictions requiring him to obtain permission before filing certain new actions or pleadings.

Order

Because the court found at least three qualifying strikes, it concluded that Lettieri could not proceed without paying the filing fee unless he demonstrated that he was in imminent danger of serious physical injury when he filed the complaint. The court found that the complaint did not allege that he faced such danger from Facebook on May 2, 2024, the date the complaint was signed.

Judge Haywood S. Gilliam, Jr. ordered Lettieri to show cause within 28 days why his requests for permission to proceed without paying the filing fee should not be denied under § 1915(g). The order did not itself deny those requests. It stated that failure to respond as ordered would result in dismissal of the action without further notice under Federal Rule of Civil Procedure 41(b) for failure to comply with a court order.