Tolliver v. Jordan

Background

Eric Tolliver, who was incarcerated at Five Points Correctional Facility, brought this action without a lawyer. He requested permission to proceed without prepaying the filing fee, commonly called proceeding in forma pauperis. The defendants listed in the caption were Lieutenant Jordan, C.O. DePalo, C.O. E. Bonnell, John Doe #1, Jane Doe #1, John Doe #2, and Jane Doe #2.

The court stated that Tolliver was already barred from filing a new action without prepaying the fee while incarcerated. That bar was based on 28 U.S.C. § 1915(g), the Prison Litigation Reform Act’s “three-strikes” rule. The rule generally prevents a prisoner from proceeding without prepaying the filing fee after three earlier federal actions or appeals were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner was facing an imminent danger of serious physical injury.

The court referred to an earlier order finding that Tolliver had accumulated three qualifying strikes. The opinion identifies those prior matters as dismissals for failure to state a claim and an appeal dismissed as frivolous. The opinion states that Tolliver’s new complaint alleged that defendants transferred him to another facility in retaliation for his grievances, but it did not show that he was in imminent danger of serious physical injury when he filed the complaint.

Ruling

The court denied Tolliver’s request to proceed without prepaying the filing fee. It dismissed the complaint without prejudice under 28 U.S.C. § 1915(g). The dismissal did not prevent Tolliver from starting a new federal civil action by paying the filing fee. Any such complaint would be subject to prisoner screening under 28 U.S.C. § 1915A.

The court also certified that an appeal would not be taken in good faith and denied permission to proceed without prepaying the filing fee for an appeal. The court stated that Tolliver remains barred from proceeding without prepaying filing fees in future actions while in custody unless he alleges facts showing an imminent threat of serious physical injury.

Classification and scope

This is a procedural order because the court disposed of the case based on the filing-fee restriction and the absence of the imminent-danger exception, rather than deciding whether Tolliver’s retaliation allegations were legally valid.