Burns v. Randall Richards, Esq.
- Colleen McMahon
- 1:20-cv-07413
- U.S. District Court · Southern District of New York
- 3
In Burns v. Richards, Judge McMahon denied Burns’s fee waiver and dismissed the case without prejudice because three strikes barred him from proceeding without fees.
George Burns’s federal lawsuit was dismissed without prejudice, and he was denied permission to proceed without prepaying filing fees. While incarcerated, he remains barred from proceeding without prepaying fees in future federal civil actions unless he shows imminent danger of serious physical injury; the order stated that he may start a new action by paying the required fees.
What happened
In Burns v. Randall Richards, Esq., George Burns sued the attorney who represented him in a state criminal case and later advised him when he represented himself. Burns filed the federal case without a lawyer and asked to proceed without paying filing fees.
The court said Burns had three prior qualifying dismissals, so federal law barred him from proceeding without paying fees while incarcerated unless he faced an immediate danger of serious physical injury. The complaint did not show that he faced such a danger when he filed it.
Judge Colleen McMahon denied Burns’s request to proceed without paying fees and dismissed the action without prejudice under the three-strikes rule. Burns could start a new federal civil action by paying the required fees, but the filing bar would continue while he was incarcerated unless the exception applied.
The detailed version
- Burns v. Randall Richards, Esq. · No. 1:20-cv-07413
- Colleen McMahon
- Nov. 4, 2020
Background
George Burns brought this federal civil action against Randall Richards, Esq., whom the opinion describes as Burns’s court-appointed defense attorney in a state-court criminal action and later his legal advisor when Burns represented himself. Burns filed the action without a lawyer while he was held on Rikers Island and asked to proceed without prepaying filing fees.
Three-strikes rule
Under 28 U.S.C. § 1915(g), a prisoner generally may not bring a civil action without prepaying fees if the prisoner previously had three actions or appeals dismissed as frivolous, malicious, or for failure to state a claim. The exception applies if the prisoner was under imminent danger of serious physical injury when the complaint was filed.
The court determined that Burns was already subject to this filing bar because his third qualifying dismissal had been issued before he filed this action. The court also determined that Burns’s complaint did not show an imminent danger of serious physical injury at the time of filing.
Disposition
The court denied Burns’s request to proceed without prepaying filing fees and dismissed the action without prejudice under § 1915(g). The order stated that Burns could commence a new federal civil action by paying the relevant fees. It also stated that he remained barred from filing future federal civil actions without prepaying fees while he was a prisoner unless he was under imminent danger of serious physical injury. The court certified that any appeal would not be taken in good faith and denied fee-waiver status for an appeal.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.