Valles v. Attorney General of The United States

Background

Andrew Valles, who was incarcerated at FCI McKean and litigated without a lawyer, filed this action against the Attorney General of the United States and the attorneys general of California, New York, and Utah. He asked to proceed without prepaying the filing fee, a status commonly called proceeding without paying the filing fee. His complaint challenged the requirement under the Sex Offender Registration and Notification Act that he register as a sex offender after release. He alleged that registration would violate his constitutional rights and referred to past assaults and possible future misconduct by law-enforcement officers.

Three-strikes rule

The court applied 28 U.S.C. § 1915(g), part of the Prison Litigation Reform Act. That provision generally bars an incarcerated person from bringing a civil action without prepaying the filing fee if the person has had three or more prior cases or appeals dismissed as frivolous, malicious, or for failure to state a claim, unless the person faces an immediate danger of serious physical injury.

The court independently identified three qualifying prior dismissals involving Valles: two appeals dismissed as frivolous and one action dismissed for failure to state a claim. The opinion also stated that an earlier order had already determined that Valles was barred from filing new actions without prepaying fees while incarcerated.

Immediate-danger exception

The court concluded that Valles’s complaint did not show an immediate danger of serious physical injury when he filed it. The alleged choice between complying with registration requirements and risking arrest did not itself show a risk of serious physical injury. The allegations that past assaults would make future assaults likely were described as speculative and unsupported by factual allegations. The court also found that nothing in the complaint showed an immediate danger, whether physical or otherwise, at the time of filing.

Other fee argument

Valles argued that 28 U.S.C. § 1915(b)(4) allowed him to proceed despite the three-strikes bar because he could not pay the initial partial filing fee. The court rejected that argument, explaining that this provision applies only to incarcerated people who are otherwise qualified to proceed without prepaying fees. The court concluded that Valles was barred because of his litigation history, not because he lacked money.

Ruling and effect

Chief Judge Laura Taylor Swain denied Valles’s request to proceed without prepaying fees and dismissed the complaint without prejudice under § 1915(g). The court stated that Valles remained barred from filing future actions without prepaying fees while incarcerated unless he faced an immediate threat of serious physical injury. It also stated that he could bring a new action while incarcerated by paying the filing fees. If he was no longer incarcerated, the § 1915(g) bar would not apply, although any renewed request to proceed without prepaying fees would still be reviewed under the applicable screening provisions.

The court declined to docket Valles’s handwritten notice as a notice of appeal because no order or judgment had been entered at the time he filed it. The court certified that any appeal from this order would not be taken in good faith and denied fee-waiver status for an appeal. The Clerk of Court was directed to enter judgment.