Burns v. Schell
- Laura Swain
- 1:20-cv-05582
- U.S. District Court · Southern District of New York
- 9
In Burns v. Schell, Judge Stanton denied George Burns permission to proceed without fees and dismissed his complaint under the PLRA three-strikes rule.
George Burns’s ability to proceed without paying the filing fee in this action and in future actions filed while he is a prisoner; the dismissal did not bar him from proceeding if he paid the required fee, subject to the court’s stated conditions.
What happened
Burns v. Schell involved George Burns’s request to bring his case without paying the filing fee while proceeding without a lawyer. The court had found that he previously filed at least three cases that counted as strikes under the Prison Litigation Reform Act.
Burns argued that his earlier cases should not count because defendants were not served, two were mandamus petitions, one was dismissed after he was released, and he was not a vexatious litigant. The court rejected those arguments and found that he had not shown that he faced an immediate threat of serious physical injury when he filed this case.
Judge Stanton denied Burns’s request for additional time and permission to proceed without paying the filing fee. The court dismissed the complaint without prejudice under the three-strikes rule, subject to reopening if Burns paid the $400 filing fee within 30 days, and closed the case.
The detailed version
- Burns v. Schell · No. 1:20-cv-05582
- Laura Swain
- Oct. 28, 2020
Background
George Burns filed this action against Amy Schell, LMSW, while proceeding without a lawyer. He asked to proceed without paying the filing fee. The court had previously ordered him to explain why the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g), should not prevent him from proceeding without paying fees while he was a prisoner.
The PLRA’s “three-strikes” rule generally prevents a prisoner who has had at least three cases dismissed as frivolous, malicious, or for failure to state a claim from proceeding without paying the filing fee. The exception applies when the prisoner shows that he faced an imminent danger of serious physical injury when the complaint was filed.
The Three Prior Cases
The court found that three of Burns’s earlier cases qualified as strikes:
- In Burns v. City of Yonkers, the court dismissed the complaint for failure to state a claim after Burns did not file an amended complaint as directed. - In Burns v. Foodtown Express of Yonkers LLC, the court treated Burns’s mandamus petition as a civil action and dismissed it for failure to state a claim. The court explained that the petition sought relief typically asserted in a civil-rights action and was not directed at a judge conducting a criminal trial. - In Burns v. Department of Health & Human Services, the court dismissed another mandamus petition for failure to state a claim. Burns had filed that case while detained, so his later release before the dismissal did not prevent the case from counting as a prisoner action under the PLRA.
The court also ruled that the absence of service on defendants did not prevent the dismissals from counting as strikes. It rejected Burns’s arguments that his lack of legal knowledge, alleged mistakes, and belief that the earlier cases should not have been considered excused application of the three-strikes rule. The court also stated that the rule did not unconstitutionally burden a prisoner’s access to the courts.
Imminent-Danger Exception
The court found that Burns did not allege facts showing an imminent danger of serious physical injury when he filed this action. His claims concerned events occurring from June 2018 through May 2019, while the court received this action on July 16, 2020. The court therefore found that the exception to the three-strikes rule did not apply.
Disposition
Judge Louis L. Stanton denied Burns’s request for additional time to provide information about the PLRA. The court denied his request to proceed without paying the filing fee and dismissed the complaint without prejudice under the PLRA’s three-strikes rule. The dismissal was subject to reopening if Burns paid the $400 filing fee within 30 days of the order. The court terminated all other pending matters and directed the Clerk of Court to close the action. The court also warned that frivolous filings could lead to additional sanctions, including monetary penalties.
Read the full 9-page opinion on CourtListener, the free public archive maintained by the Free Law Project.