Gibson v. Doe
- Laura Swain
- 1:23-cv-09474
- U.S. District Court · Southern District of New York
- 3
In Gibson v. Doe, Judge Swain allowed David Gibson to proceed without fees after finding the three-strikes rule did not apply when he filed.
David Gibson may proceed without paying the filing fee in this case; the underlying claims have not yet been resolved, and the case remains subject to statutory screening.
What happened
In Gibson v. Doe, David Gibson, who is detained on Rikers Island and filed without a lawyer, challenged an order questioning whether he could proceed without paying filing fees. The court had previously identified possible prior cases that might have counted against him under the filing restriction known as the three-strikes rule.
The court determined that Gibson was not a “prisoner” under that rule when he filed this case, so the three-strikes restriction did not apply. The court also explained that the earlier cases did not appear to qualify as strikes for the reasons discussed in the order.
The court vacated the order requiring Gibson to explain why his fee waiver should not be revoked and allowed him to proceed without paying the filing fee. The court said the case would later undergo statutory screening, but denied fee-waiver status for any appeal. Judge Laura Taylor Swain signed the order.
The detailed version
- Gibson v. Doe · No. 1:23-cv-09474
- Laura Swain
- May 2, 2025
Background
David Gibson filed this action without a lawyer and had been granted permission to proceed without paying the filing fee. On July 8, 2024, the court directed Gibson to explain why that permission should not be revoked because the court believed he might be barred by the “three-strikes” provision of the filing-fee statute, 28 U.S.C. § 1915(g).
That provision generally bars a prisoner from proceeding without paying the filing fee if, on three or more prior occasions while incarcerated or detained, the prisoner brought an action or appeal that was dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner faced an imminent danger of serious physical injury. The statute defines “prisoner” to include a person detained for criminal-law or specified supervision-related reasons.
Court’s reasoning
After reviewing the filing more closely, the court determined that Gibson was not a “prisoner” within the meaning of § 1915(g) when he filed this action. The court therefore concluded that the three-strikes provision did not apply.
The court also explained why the three potential strikes it had previously identified did not appear to qualify. In the earlier round of this case, one dismissal included both a failure-to-state-a-claim ground and a ground based on defendants’ immunity. The court described that as a mixed dismissal and stated that such a dismissal does not count as a strike. In another earlier case, the federal claims were dismissed for failure to state a claim, but the court declined to exercise supplemental jurisdiction over state-law claims; the court stated that this did not appear to count as a strike. Finally, the appellate court’s affirmance in that matter did not appear to count as a separate strike because the appeal itself was not dismissed.
Ruling
The court vacated its July 8, 2024 order directing Gibson to show cause why his permission to proceed without paying the filing fee should not be revoked, and directed the clerk to vacate that order. Gibson may proceed without paying the filing fee in this case. The court stated that the action would later be reviewed under the filing-fee statute’s screening provision, 28 U.S.C. § 1915(e)(2)(B).
The court certified that any appeal from this order would not be taken in good faith and denied permission to proceed without paying fees for purposes of an appeal. Judge Laura Taylor Swain signed the order.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.