McCain v. Westchester County Jail

Background

Adrian McCain filed the action while incarcerated and represented himself. He sought permission to proceed without paying the filing fee. The opinion says he was later held at the Willard Drug Treatment Campus and that he had filed the complaint while incarcerated at Downstate Correctional Facility. The court construed a December 4, 2019 letter and attachments as a supplement to the complaint.

Three-strikes finding

The Prison Litigation Reform Act bars a prisoner from proceeding without paying filing fees in a federal civil action if the prisoner previously brought three or more actions or appeals that were dismissed as frivolous, malicious, or for failing to state a claim, unless the prisoner was under imminent danger of serious physical injury when the new complaint was filed.

The court found that McCain had accumulated at least three qualifying dismissals before filing this action. The opinion identifies several earlier related proceedings, including dismissals for failure to state a claim and one dismissal described as untimely for failure to state a claim. The court therefore concluded that § 1915(g) barred McCain from filing a federal civil action without paying fees while he was a prisoner, unless the imminent-danger exception applied.

Imminent-danger exception

McCain alleged that other prisoners assaulted him in September 2019 while he was held at the Westchester County Jail and that correctional staff failed to protect him. The court stated that he filed this action after those events, while incarcerated at Downstate Correctional Facility. It found that he alleged no facts showing that he faced an imminent danger of serious physical injury when he filed the complaint.

Notice and order

Because McCain was representing himself, the court gave him notice and an opportunity to respond before entering a final unfavorable decision. The court granted him leave to submit, within 30 days, a declaration showing why he should not be barred from proceeding without paying fees. He could attempt to show that two or more of the listed dismissals should not count as strikes or that he faced imminent danger of serious physical injury when he filed the complaint.

The order did not itself deny McCain’s application to proceed without paying fees or dismiss the action. Instead, it stated that if McCain failed to respond or failed to make the required showing, the court would deny the application, dismiss the action without prejudice to his paying the required $400 fee within 30 days, and recognize him as barred under § 1915(g) from filing future federal civil actions without paying fees while he was a prisoner. The court also certified that an appeal would not be taken in good faith and denied fee-free status for purposes of an appeal. Judge Colleen McMahon signed the order.