Diaz v. Biben

Background

Gilberto Diaz, who was incarcerated at Green Haven Correctional Facility, filed this action without a lawyer against Ellen Biben, identified in the caption as a Justice of the Supreme Court of the State of New York, Criminal Term, Part 43. Diaz did not file an application to proceed without paying filing fees, called in forma pauperis status, or a prisoner authorization. He also did not pay the required filing fees. The court therefore treated him as seeking permission to proceed without paying those fees.

The opinion states that Diaz asserted constitutional and criminal-law claims against the judge who appeared to have presided over his state-court criminal case. The claims appeared to arise from the judge’s acts or rulings during that case.

Three-Strikes Rule

The Prisoner Litigation Reform Act bars a prisoner from bringing a federal civil action without paying fees if, on three or more prior occasions while incarcerated or detained, the prisoner brought an action or appeal that was dismissed as frivolous, malicious, or for failing to state a claim. The exception is when the prisoner is under imminent danger of serious physical injury.

The court relied on its conclusion that Diaz was barred by this three-strikes rule. It also determined that his complaint did not show an imminent danger of serious physical injury existing when he filed it. The opinion notes that a danger that had already ended by the filing date would not satisfy the exception.

Disposition

The court denied Diaz permission to proceed without paying filing fees and dismissed the action without prejudice under the Prisoner Litigation Reform Act’s three-strikes provision. The opinion states that Diaz could begin a new federal civil action by paying the required fees, after which the complaint would be reviewed under the federal prisoner-screening statute. That statute requires dismissal of certain prisoner civil-rights actions that are frivolous, malicious, fail to state a claim, or seek money from a defendant immune from that relief.

Diaz remained barred from filing future federal civil actions without paying fees while he was incarcerated unless he was under imminent danger of serious physical injury. The court also certified that an appeal would not be taken in good faith and denied permission to appeal without paying fees. Judge Colleen McMahon signed the order.