Berry v. U.S. Department of Treasury
- Laura Swain
- 1:25-cv-08323
- U.S. District Court · Southern District of New York
- 2
Berry v. U.S. Department of Treasury: Chief Judge Swain denied permission to proceed without paying fees and dismissed the complaint without prejudice under the three-strikes rule.
Duane L. Berry: his request to proceed without paying the filing fee was denied, and his complaint was dismissed without prejudice. The order also states that he remains barred from proceeding without paying filing fees in future actions while he is in custody unless he faces an imminent threat of serious physical injury.
What happened
In Duane L. Berry v. U.S. Department of Treasury, Berry, who was incarcerated and had not paid the filing fee, sought permission to bring the case without paying it. He alleged that he was an authorized agent of the Treasury Department and sought preservation and transfer of certain seized federal securities.
The court said Berry was barred from proceeding without paying fees because an earlier order had found that the three-strikes rule applied to him. That rule generally prevents a prisoner with three qualifying prior dismissals from proceeding without paying fees unless the complaint shows an imminent danger of serious physical injury. The court found no such danger in Berry’s complaint.
Chief Judge Laura Taylor Swain denied Berry’s request to proceed without paying fees and dismissed the complaint without prejudice under the three-strikes rule. The court entered judgment and denied permission to appeal without paying fees, finding that an appeal would not be taken in good faith. Berry may start a new action by paying the filing fees.
The detailed version
- Berry v. U.S. Department of Treasury · No. 1:25-cv-08323
- Laura Swain
- Oct. 10, 2025
Background
Duane L. Berry, who was incarcerated at FMC Butner, brought this action without a lawyer. Because he did not pay the $405 filing fee, the court understood that he was asking to proceed without paying the fee under the federal law commonly called the in forma pauperis statute.
Berry alleged that he was an “authorized agent” of the United States Treasury Department and sought preservation and transfer to Congress of certain “seized federal securities.” The opinion does not describe any other legal theory or requested relief.
Three-Strikes Rule
The Prison Litigation Reform Act’s three-strikes rule, 28 U.S.C. § 1915(g), generally bars a prisoner from bringing a civil action without paying the filing fee if, on three or more earlier 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. The exception applies when the prisoner is under an imminent danger of serious physical injury.
The court relied on an earlier order stating that Berry was barred from filing a new action without paying the fee while he was a prisoner. The court found that Berry’s complaint did not show that he faced an imminent danger of serious physical injury. It therefore concluded that the three-strikes rule barred him from proceeding without paying the fee.
Ruling
Chief United States District Judge Laura Taylor Swain denied Berry’s request to proceed without paying the filing fee and dismissed the complaint without prejudice under the three-strikes rule. The clerk was directed to enter judgment.
The court also certified that any appeal from the order would not be taken in good faith and denied permission to appeal without paying the required fees. The order states that Berry may commence a new action by paying the filing fees; any such complaint would be subject to the prisoner-screening requirements described in the opinion. The order does not reach the merits of Berry’s allegations about the alleged seized federal securities.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.