Lurch, Jr. v. Doe

Background

Robert Derek Lurch, Jr. brought this civil-rights action under 42 U.S.C. § 1983. Chief District Judge Swain had allowed him to proceed without prepaying filing fees under the federal statute governing fee waivers for qualifying prisoners.

Defendants Eric Kim and Amanda Psareas asked the court to require Lurch to show why that fee-waiver status should not be revoked. They argued that Lurch had at least three prior dismissals qualifying as “strikes” under the Prison Litigation Reform Act. Under that law, a prisoner generally may not proceed without prepaying filing fees after three qualifying prior cases or appeals, unless the prisoner faces an immediate risk of serious physical injury.

The Court’s Review of the Four Alleged Strikes

The court reviewed four earlier proceedings identified by the defendants, referring to them by docket numbers rather than repeating their prior case captions.

1. In the proceeding with docket number 16-CV-3835 (S.D.N.Y.), the court dismissed the claims properly before it for failure to state a claim and did not allow another amendment. Judge Broderick determined that this dismissal counted as a strike.

2. In the proceeding with docket number 16-CT-3133 (E.D.N.C.), the court dismissed Lurch’s claims without prejudice under Heck v. Humphrey because he had not shown that the underlying criminal conviction had been invalidated. Relying on the Second Circuit’s decision in Cotton v. Noeth, Judge Broderick concluded that this dismissal did not count as a strike. The dismissal appeared to involve whether Lurch’s claims were premature, and the earlier court had not clearly stated that it was deciding the claims on their merits. Any ambiguity could not be resolved against Lurch by presuming that the case was a strike.

3. In the proceeding with docket number 18-CV-2379 (S.D.N.Y.), the court dismissed claims based on the same criminal conviction under the federal prisoner-screening statute and found that amendment would be futile. Because the defects could not be corrected, Judge Broderick determined that this dismissal counted as Lurch’s second strike.

4. In the proceeding with docket number 20-CV-3430 (S.D.N.Y.), the court dismissed the case after Lurch failed to file an amended complaint. Under Cotton, a dismissal for failing to file an amended complaint after receiving permission to amend does not count as a strike. The court therefore did not count this proceeding.

Ruling

Judge Vernon S. Broderick found that only two of Lurch’s prior proceedings qualified as strikes under the Prison Litigation Reform Act. The court therefore DENIED the City Defendants’ letter request for an order requiring Lurch to show cause why his fee-waiver status should not be revoked.