Leventhal v. Tomford

Background

The defendants submitted a letter asking for permission to file a motion for reconsideration of the court’s earlier order granting Howard Leventhal status to proceed without paying filing fees. They argued that Leventhal was not eligible for that status under 28 U.S.C. § 1915(g), commonly called the prisoner “three-strikes” rule.

That rule generally bars a prisoner from proceeding without paying filing fees when the prisoner has brought at least three prior actions or appeals while incarcerated that were dismissed as frivolous, malicious, or for failure to state a claim. The defendants identified more than three cases that they said met those criteria.

Court’s analysis

The court explained that permission to seek reconsideration requires a showing of “compelling circumstances.” Reconsideration is a limited procedure used to correct a clear legal or factual error or to consider newly discovered evidence. The court found that the defendants had identified a potentially serious legal error because Leventhal had been granted fee-waiver status despite the alleged prior qualifying dismissals.

The court also noted an exception to the three-strikes rule. A prisoner with three strikes may still proceed without paying filing fees if the prisoner is facing imminent danger of serious physical injury. Much of Leventhal’s amended complaint concerned alleged deficiencies in the medical care he received at Federal Prison Camp Duluth. Based on the pleadings and the defendants’ letter, the court said there was not enough information to decide whether the exception applied.

Disposition

The court granted the defendants’ letter request for permission to file a motion for reconsideration. It also permitted Leventhal to respond within 21 days from the filing date of the defendants’ letter. The order did not itself grant or deny the anticipated reconsideration motion and did not finally decide whether Leventhal could continue proceeding without paying filing fees.