Gamble v. Lesser

Background

Kevin Gamble, who appeared without a lawyer, filed this action while detained at the Eric M. Taylor Center. He sued Police Officer Michael Lesser and others and asked to proceed without prepaying the filing fee, a status commonly called proceeding without paying the filing fee.

The Prison Litigation Reform Act contains a “three-strikes” rule. It generally prevents a prisoner from proceeding without prepaying the filing fee if the prisoner previously brought three or more federal civil actions or appeals that were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner faced an immediate danger of serious physical injury when the new complaint was filed.

Prior Cases and Strikes

The court reviewed Gamble’s earlier federal cases. It did not count cases transferred to another court, dismissed for duplicative filing, voluntarily withdrawn, dismissed for failing to file a required filing-fee application or address change, dismissed for failure to comply with court orders, recharacterized as a petition challenging a state conviction, dismissed because filing fees were not paid after the fee waiver was denied or revoked, or dismissed on summary judgment for failure to exhaust administrative grievance procedures.

The court counted three other dismissals as strikes: Gamble v. Kelsh, No. 07-CV-00093, which was dismissed for failure to state a claim; a later action asserting the same claims, which was dismissed as frivolous and for failure to state a claim; and Gamble v. Doe, No. 18-CV-3169, which was dismissed for failure to state a claim.

Imminent-Danger Exception

The court determined that Gamble was barred from proceeding without prepaying the filing fee unless his complaint showed an immediate danger of serious physical injury when he filed it. Gamble alleged that on December 6, 2019, his parole officer searched his home without a warrant, resulting in an allegedly illegal arrest. The court concluded that this allegation did not establish the required immediate danger at the time of filing.

Disposition

The court denied Gamble’s application to proceed without prepaying the filing fee and dismissed the action without prejudice under the Prison Litigation Reform Act’s three-strikes rule. The court directed the clerk to close the case. Gamble may move to reopen it within 30 days by paying the $400 filing fee or submitting a declaration showing either that the three-strikes rule does not apply to him or that he has not filed three or more qualifying federal civil actions or appeals. The order does not decide the underlying claims against the defendants.