Lurch, Jr. v. Bernal

Background

Robert Derek Lurch Jr. filed this civil action while detained at the Anna M. Kross Center on Rikers Island. He was representing himself and requested permission to proceed without paying the filing fee. The defendants named in the caption were Police Officer Dariel Bernal, identified as an arresting officer with the Newark Police Department; a doctor who ordered sedatives; and John Doe, Officer #1, identified as the partner of another officer.

Lurch alleged that he was falsely arrested in Newark, New Jersey, on September 26, 2020. He further alleged that Bernal used excessive force during the arrest and that, after he was taken to University Hospital, he was forcibly medicated.

Three-strikes issue

The Prison Litigation Reform Act generally prevents a prisoner from proceeding without prepaying filing fees if, on three or more prior occasions while incarcerated or detained, the prisoner brought cases or appeals dismissed as frivolous, malicious, or for failure to state a claim. An exception applies when the prisoner is under imminent danger of serious physical injury.

The court stated that Lurch had accumulated three qualifying strikes. It identified two earlier cases dismissed for failure to state a claim and one earlier case dismissed as frivolous. The court also stated that Lurch had not alleged facts suggesting that he was in imminent danger of serious physical injury when he filed this action. The opinion explains that the danger must exist when the complaint is filed, rather than having ended before filing.

The court additionally noted that Newark, New Jersey, is outside the Southern District of New York. It stated that, even if Lurch were not barred by the three-strikes rule, jurisdiction would not be proper in this court.

Order and possible consequences

Because a self-represented litigant is generally entitled to notice and an opportunity to respond before an unfavorable final decision, the court ordered Lurch to show cause why his application to proceed without paying the filing fee should not be denied under 28 U.S.C. § 1915(g). The court granted him leave to submit, within 30 days, a declaration explaining why he should not be barred under the three-strikes provision.

This order itself did not deny the fee application or dismiss the action. It stated that, if Lurch failed to respond or failed to show that the three-strikes rule did not apply, the court would deny his application to proceed without paying the filing fee, dismiss the action without prejudice, and bar him from filing future actions without prepaying filing fees while he remained a prisoner. The opinion also states that he would not be barred from filing a new case by prepaying the filing fee.

The court directed the Clerk to mail the order to Lurch and record service on the docket. It certified that any appeal from the order would not be taken in good faith and denied permission to proceed without paying fees for an appeal.