Perkins v. Previl

Background

Michael Perkins brought this civil action without a lawyer while he was detained. The opinion states that he filed the complaint while held at the George R. Vierno Center on Rikers Island and that he was later held at the Manhattan Detention Center. He requested permission to proceed without prepaying the filing fee.

Perkins alleged that on October 1, 2019, Defendant Previl, identified as a correction officer, attempted to serve him a non-kosher meal. Perkins refused the meal and referred Previl to a correction captain who knew that Perkins was supposed to receive kosher meals. Perkins alleged that Previl refused to speak with the captain. Perkins then overturned the food tray. He also alleged that Previl later tore up his grievance about the incident and, in retaliation for a later grievance, threatened to disclose Perkins’s personal identification number and another identification number to other prisoners at the detention center. Perkins sought $500,000 in damages.

Three-strikes rule

The Prisoner Litigation Reform Act’s three-strikes provision, 28 U.S.C. § 1915(g), generally bars a prisoner from bringing a civil action without prepaying the filing fee if the prisoner previously brought at least three actions or appeals that were dismissed as frivolous, malicious, or for failure to state a claim. The exception applies when the prisoner was under imminent danger of serious physical injury when the complaint was filed.

The court reviewed Perkins’s earlier dismissals and determined that he had earned at least three strikes before filing this action. The opinion identifies at least these five dismissals:

- Three 1994 actions against the New York City Department of Correction that were dismissed as frivolous under the former version of 28 U.S.C. § 1915(d). - An action against Morgenthau that was dismissed as frivolous. - An action against the owner of Cheri Magazine that was dismissed for failure to state a claim.

The court also noted that it and two other federal district courts had previously recognized that Perkins was disqualified from proceeding without prepaying fees under the three-strikes provision. The court independently reviewed the earlier dismissals to confirm that they qualified as strikes.

Imminent-danger exception

The court concluded that Perkins’s complaint did not allege facts showing an imminent danger of serious physical injury when he filed it. The court therefore determined that the exception to the three-strikes rule did not apply and that Perkins was barred from proceeding without prepaying the filing fee.

Ruling

The court denied Perkins’s application to proceed without prepaying fees and dismissed the action without prejudice under the three-strikes provision. The court granted Perkins 30 days from the date of the order to either pay the $400 filing fee or show cause—meaning explain why—the three-strikes rule should not bar him from proceeding without prepayment. The court also certified that an appeal from the order would not be taken in good faith and denied fee-waiver status for purposes of an appeal.