Perkins v. Talton
- Colleen McMahon
- 1:19-cv-09562
- U.S. District Court · Southern District of New York
- 2
In Perkins v. Talton, Judge McMahon denied IFP status and dismissed the complaint without prejudice under the prisoner three-strikes rule.
Michael Perkins, who could not proceed without paying the filing fee and whose complaint was dismissed without prejudice; the order also affected his ability to file future federal actions IFP while in custody.
What happened
Perkins v. Talton concerned Michael Perkins, who was incarcerated and represented himself. He alleged that Correction Officer Talton failed to provide him with a kosher meal and asked to file without paying the court fee.
The court found that Perkins was barred from proceeding without paying because courts had previously determined that he had three or more qualifying dismissed cases. The complaint did not show that he faced an immediate threat of serious physical injury, which is an exception to that rule.
Chief Judge Colleen McMahon denied Perkins’s request to proceed without paying the fee and dismissed the complaint without prejudice. She also denied fee-free status for any appeal, finding that an appeal would not be taken in good faith.
The detailed version
- Perkins v. Talton · No. 1:19-cv-09562
- Colleen McMahon
- Feb. 4, 2020
Background
Michael Perkins, who was incarcerated at the George R. Vierno Center on Rikers Island, filed this action without a lawyer. He alleged that Correction Officer Talton failed to provide him with a kosher meal. Perkins asked to proceed without paying the filing fee, a status commonly called proceeding in forma pauperis, or IFP.
Three-strikes rule
The Prison Litigation Reform Act’s three-strikes rule, 28 U.S.C. § 1915(g), generally prevents a prisoner from bringing a federal civil action without paying the filing fee if, on three or more prior occasions while incarcerated or detained, the prisoner had an action or appeal dismissed as frivolous, malicious, or for failing to state a claim. The exception applies when the prisoner is in imminent danger of serious physical injury.
The court had previously held this matter while awaiting Perkins’s response to an order to show why the three-strikes rule did not bar him. Perkins did not respond. The court later again recognized that he was barred under § 1915(g). The opinion states that his complaint did not show imminent danger of serious physical injury; instead, it alleged the failure to provide a kosher meal.
Ruling
Chief Judge Colleen McMahon denied Perkins’s request to proceed IFP and dismissed the complaint without prejudice under § 1915(g). The order stated that Perkins remained barred from filing future actions IFP while in custody unless he faced an imminent threat of serious physical injury. It also stated that he could begin a new federal civil action by paying the relevant filing fees, after which the complaint would be reviewed under the prisoner-screening statute, 28 U.S.C. § 1915A.
The court certified under 28 U.S.C. § 1915(a)(3) that an appeal would not be taken in good faith and denied IFP status for purposes of an appeal.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.