Cary v. John/Jane Doe

Background

Hubert Calvin Cary, Jr. brought this action against John/Jane Doe and others while he was detained at the Otis Bantum Correctional Center on Rikers Island. Cary represented himself and asked to proceed in forma pauperis (IFP), meaning without paying the filing fee in advance. The opinion says his claims concern peer counseling.

Three-Strikes Rule

Under the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), a prisoner generally may not start a civil case without paying the filing fee after three or more earlier cases or appeals were dismissed as frivolous, malicious, or for failing to state a legally sufficient claim. An exception applies if the prisoner is in imminent danger of serious physical injury when the complaint is filed.

The court relied on an earlier related proceeding, No. 16-CV-6299 (S.D.N.Y.), which had determined that Cary was barred from filing new actions without paying the fee while incarcerated. The court found that Cary’s complaint did not show imminent danger of serious physical injury. It concluded that claims concerning peer counseling did not fall within the exception.

Ruling

The court denied Cary’s request to proceed IFP and dismissed the complaint without prejudice under the three-strikes rule. The opinion states that Cary remains barred from filing future actions IFP while he is a prisoner unless he shows that he faces an imminent threat of serious physical injury.

The court also certified that an appeal would not be taken in good faith and denied IFP status for purposes of an appeal. The opinion explains that Cary may commence a new action by paying the filing fee, but that any such complaint would be reviewed under 28 U.S.C. § 1915A, which requires screening of prisoner civil-rights complaints.

Judge Laura Taylor Swain signed the order on July 17, 2026.