Burns v. Westchester County Department of Social Services
- Colleen McMahon
- 1:20-cv-06649
- U.S. District Court · Southern District of New York
- 2
In Burns v. Westchester County Department of Social Services, Judge McMahon denied IFP and dismissed the complaint without prejudice under the three-strikes rule.
George Burns was affected: he could not proceed without prepaying the filing fee, his complaint was dismissed without prejudice, and fee-free filing in future actions while detained remains barred unless he shows an imminent threat of serious physical injury. The dismissal does not prevent him from starting a new action by paying the filing fee.
What happened
George Burns sued the Westchester County Department of Social Services, alleging that his Medicaid benefits were suspended without a fair hearing in February 2019. He filed the case without a lawyer and asked to proceed without paying the filing fee.
The court said Burns was barred from proceeding without paying the fee because he had three or more prior qualifying dismissals while detained, and his complaint did not show that he faced an imminent danger of serious physical injury. The court therefore denied his request to proceed without paying the fee and dismissed the complaint without prejudice.
Judge Colleen McMahon also denied fee-free status for any appeal. Burns may start a new action by paying the filing fee, and he may seek to proceed without paying it in a future case only if he is under an imminent threat of serious physical injury.
The detailed version
- Burns v. Westchester County Department of Social Services · No. 1:20-cv-06649
- Colleen McMahon
- Oct. 30, 2020
Background
George Burns brought this action against the Westchester County Department of Social Services. The opinion states that Burns was detained at the Anna M. Kross Center on Rikers Island, represented himself, and asked to proceed without prepaying the filing fee. He alleged that the defendants violated his rights in February 2019 by suspending his Medicaid benefits without a fair hearing.
Three-strikes rule
The court applied 28 U.S.C. § 1915(g), part of the Prison Litigation Reform Act. That provision generally prevents a detained person from filing a civil action without prepaying the filing fee if, on three or more prior occasions while incarcerated or detained, the person brought an action or appeal that was dismissed as frivolous, malicious, or for failing to state a claim. An exception applies when the person is under an imminent danger of serious physical injury.
The court relied on an earlier order in a related proceeding stating that Burns was barred from filing new actions without prepaying the fee while detained. The court found that Burns's complaint did not show an imminent danger of serious physical injury. It therefore concluded that he was barred from proceeding without prepaying the filing fee.
Disposition
The court denied Burns's request to proceed without prepaying the filing fee and dismissed the complaint without prejudice under the Prison Litigation Reform Act's three-strikes rule. The order states that Burns may commence a new action by paying the filing fee. It also states that any new complaint would be reviewed under the prisoner-screening statute, 28 U.S.C. § 1915A. The court certified that an appeal would not be taken in good faith and denied fee-free status for purposes of an appeal. Burns remains barred from proceeding without prepaying the filing fee in future actions while detained unless he shows an imminent threat of serious physical injury. Judge Colleen McMahon directed the clerk to mail Burns a copy of the order and note service on the docket.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.