Burns v. Schell
- Laura Swain
- 1:20-cv-05582
- U.S. District Court · Southern District of New York
- 4
In Burns v. Schell, Judge Stanton ordered George Burns to explain why he should receive fee-waiver status despite three prior strikes.
George Burns is required to respond within 30 days to preserve his request to proceed without paying the filing fee. If he does not establish that the three-strikes rule does not apply, his fee-waiver request will be denied, this action will be dismissed without prejudice, and he will be barred from filing future actions without paying filing fees while incarcerated.
What happened
In Burns v. Schell, George Burns, who was incarcerated and representing himself, asked to proceed without paying the filing fee. The court identified three of his earlier cases as qualifying strikes under the Prison Litigation Reform Act.
The court said Burns did not allege facts showing that he faced an immediate danger of serious physical injury when he filed this case. It gave him 30 days to submit a declaration explaining why the three-strikes rule should not apply.
Judge Louis L. Stanton did not yet make the final decision on Burns’s fee-waiver request. The order states that if Burns does not respond or cannot show that the rule does not apply, the court will deny his request to proceed without paying, dismiss this action without prejudice, and bar him from filing future actions without paying fees while incarcerated.
The detailed version
- Burns v. Schell · No. 1:20-cv-05582
- Laura Swain
- Sept. 4, 2020
Background
George Burns, while incarcerated at the Anna M. Kross Center on Rikers Island, filed this action without a lawyer and requested permission to proceed without paying the filing fee. He alleges that, between June 2018 and May 2019, while detained at the Westchester County Jail in connection with a criminal matter, Amy Schell interfered with his criminal case and arranged his involuntary admission to a hospital in retaliation for grievances he filed against her.
The three-strikes rule
The Prison Litigation Reform Act generally prevents a prisoner from proceeding without paying filing fees if the prisoner has brought three or more prior federal actions or appeals that were dismissed as frivolous, malicious, or for failure to state a claim. The exception applies when the prisoner was facing an imminent danger of serious physical injury when the new case was filed.
The court identified three of Burns’s earlier actions as strikes because they were dismissed for failure to state a claim: a mandamus petition concerning the Department of Health and Human Services, a mandamus petition concerning Foodtown Express of Yonkers LLC, and an action concerning the City of Yonkers. The court concluded that the two mandamus petitions counted because Burns sought relief similar to relief available in a civil-rights action.
The court also stated that Burns did not allege facts suggesting that he was in imminent danger of serious physical injury when he filed this case. The court therefore found that the three-strikes rule appeared to prevent him from proceeding without paying the filing fee.
Notice and order
Because Burns was representing himself, the court gave him notice and an opportunity to respond before issuing a final decision against him. It ordered him to file, within 30 days, a declaration explaining why he should not be barred under the three-strikes rule. The Clerk of Court was directed to mail him the order and note service on the docket.
The court did not yet deny the fee-waiver request or dismiss the case. It ordered Burns to show cause why his request should not be denied. If he does not respond or cannot make the required showing, the court stated that it will deny his request to proceed without paying the filing fee, dismiss this action without prejudice, and bar him from filing future actions without paying filing fees while he is incarcerated. The order also states that he may file a new case by paying the filing fee. All other pending matters were terminated.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.