Burns v. Sheck
- Laura Swain
- 1:24-cv-02361
- U.S. District Court · Southern District of New York
- 3
In Burns v. Sheck, Judge Swain denied permission to proceed without prepaying fees and dismissed the complaint without prejudice under the three-strikes rule.
George Burns’s ability to proceed without prepaying fees in this case and in future federal civil actions while he is a prisoner. The complaint named Olivia Sheck and medical personnel from the George R. Vierno Center as defendants.
What happened
In Burns v. Sheck, George Burns sued defense counsel Olivia Sheck and medical personnel, alleging violations of his constitutional rights and the Health Insurance Portability and Accountability Act. He asked to proceed without prepaying the filing fee and said he faced danger from COVID-19 in the ward where he was confined.
The court said Burns had three prior qualifying dismissals, which generally barred him from proceeding without prepaying fees. It found that the alleged COVID-19 danger was not connected to his damages claims and that a favorable result in this case would not address his housing conditions. The court therefore denied his request and dismissed the complaint without prejudice under the three-strikes rule.
Judge Swain also denied permission to appeal without prepaying fees, stating that an appeal would not be taken in good faith. Burns remains barred from filing future federal civil actions without prepaying fees while he is a prisoner, unless he shows imminent danger of serious physical injury.
The detailed version
- Burns v. Sheck · No. 1:24-cv-02361
- Laura Swain
- May 28, 2024
Background
George Burns, who was confined at the Mid-Hudson Forensic Psychiatric Center, filed this action without a lawyer. He alleged that criminal defense counsel Olivia Sheck and medical personnel from the George R. Vierno Center on Rikers Island violated his constitutional rights and the Health Insurance Portability and Accountability Act. He sought unspecified damages and asked to proceed in forma pauperis, meaning without prepaying the filing fee.
Three-strikes rule
The Prison Litigation Reform Act bars a prisoner from bringing a federal civil action without prepaying fees if the prisoner has had three or more earlier actions or appeals dismissed as frivolous, malicious, or for failing to state a claim. The exception applies when the prisoner is in imminent danger of serious physical injury. Burns acknowledged that he had three strikes. The court also referred to a prior related proceeding in which Burns had been found subject to the three-strikes bar.
To use the imminent-danger exception, Burns had to show a connection between the danger he alleged and the claims in this case, and show that a favorable ruling could address the injury. He identified the risk of COVID-19 in the ward at the Mid-Hudson Forensic Psychiatric Center as the danger. The court concluded that a damages award on his claims against the defense counsel and medical personnel would not address injuries related to his housing there.
Ruling
Judge Laura Taylor Swain denied Burns’s request to proceed without prepaying fees and dismissed the complaint without prejudice under the three-strikes rule in 28 U.S.C. § 1915(g). The order did not grant the imminent-danger exception. Burns remains barred from filing future federal civil actions without prepaying fees while he is a prisoner unless he is under imminent danger of serious physical injury.
The court also certified that an appeal would not be taken in good faith and denied permission to proceed without prepaying fees for an appeal. It directed the Clerk of Court to enter judgment.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.