Crichlow v. New York State Department of Corrections and Community Supervision

Background

Kevin Damion Crichlow, who was incarcerated at Auburn Correctional Facility, brought the action against the New York State Department of Corrections and Community Supervision and the warden of that facility. He filed the complaint without paying the filing fees, submitting a completed request to proceed without prepaying those fees, or providing a prisoner authorization. The court assumed that he sought permission to proceed without prepaying the fees.

Crichlow alleged a “pattern of discrimination and retaliation from 2008 to 2020” that he said violated a consent judgment governing accommodations for prisoners with sensory disabilities in the custody of the New York State Department of Corrections and Community Supervision.

Three-Strikes Rule

Under 28 U.S.C. § 1915(g), a prisoner generally may not proceed without prepaying filing fees if the prisoner previously brought three or more federal actions or appeals while incarcerated that were dismissed as frivolous, malicious, or for failure to state a claim. An exception applies when the prisoner shows an imminent danger of serious physical injury.

The court relied on a January 7, 2019 order in prior related proceedings that listed Crichlow’s qualifying dismissals. The court also concluded that his complaint did not show an imminent danger of serious physical injury. The opinion explains that the danger must exist when the complaint is filed and that a danger that had already ended by that time was not sufficient.

Ruling

Judge Louis L. Stanton denied Crichlow’s request to proceed without prepaying the filing fees and dismissed the complaint without prejudice under the Prison Litigation Reform Act’s three-strikes rule. The dismissal without prejudice means the order did not bar him from commencing a new action by paying the filing fees. If he paid those fees, the complaint would be reviewed under 28 U.S.C. § 1915A, which requires screening of a prisoner’s civil-rights complaint for specified defects, including frivolousness, maliciousness, failure to state a claim, or requests for monetary relief from an immune defendant. Crichlow remained barred from proceeding without prepaying fees in future actions while incarcerated unless he was under an imminent threat of serious physical injury.