Elleby v. Blinken

Background

Taye Elleby, who is incarcerated at the Cape Vincent Correctional Facility pursuant to a New York state-court conviction, filed this pro se action against Anthony Blinken. Elleby labeled the filing as a petition under 28 U.S.C. § 2241, a procedure used in certain circumstances to challenge unlawful custody or the execution of a sentence. He stated that he sought a certificate of nationality from the Secretary of State and also suggested that he might be seeking an order requiring government action.

How the Court Characterized the Filing

The court held that the filing was not properly treated as a § 2241 petition. Elleby did not allege that he was in federal custody in violation of federal law or that he was challenging conditions of confinement that could be remedied through the requested relief. The court instead construed the submission as a civil action under 8 U.S.C. § 1503, which provides a cause of action for seeking a judicial declaration of United States citizenship. The court also stated that an order requiring government action was not appropriate because § 1503 provided another avenue for the relief Elleby sought.

Three-Strikes Rule

Because Elleby did not pay the filing fee or submit an application to proceed without paying it, the court treated him as seeking that fee waiver. Under 28 U.S.C. § 1915(g), the Prison Litigation Reform Act bars a prisoner from proceeding without paying filing fees when the prisoner has brought three or more earlier federal actions or appeals that were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner faces an imminent danger of serious physical injury.

The court independently reviewed Elleby’s earlier dismissals and identified three qualifying strikes. The opinion states that Elleby’s complaint did not show an imminent danger of serious physical injury because it sought a certificate of nationality rather than relief concerning such a danger.

Disposition

The court dismissed the complaint without prejudice under the Prison Litigation Reform Act’s three-strikes rule. The opinion states that Elleby may commence a new action by paying the filing fees, but he remains barred from proceeding without paying fees in future actions while he is in custody unless he is under an imminent threat of serious physical injury. The court certified that an appeal would not be taken in good faith, denied fee-free status for purposes of an appeal, and directed the clerk to enter judgment.