Tapp v. Doe

Background

Sean E. Tapp, who was incarcerated at Five Points Correctional Facility in Seneca County, New York, filed this civil action without a lawyer against Justice John or Jane Doe. He sought $450 million in damages and did not prepay the filing fee.

Three-strikes rule

The court applied 28 U.S.C. § 1915(g), part of the Prison Litigation Reform Act. That provision generally prevents an incarcerated person from bringing a civil action without prepaying the filing fee when the person has had three or more prior federal actions or appeals dismissed because they were frivolous, malicious, or failed to state a legal claim. The exception applies when the person is under an imminent danger of serious physical injury.

The court relied on prior related proceedings in concluding that Tapp had already accumulated at least three qualifying dismissals. It also found that Tapp’s complaint did not show an imminent danger existing when he filed it. The opinion states that Tapp sued the judge who presided over his criminal proceedings and sought damages, but it did not reach the merits of those claims.

Ruling

Judge Colleen McMahon dismissed the complaint without prejudice under the Prison Litigation Reform Act’s three-strikes rule. The opinion states that Tapp may start a new action by paying the filing fee; that action would be screened under 28 U.S.C. § 1915A. Tapp remains barred from filing future actions without paying the fee while in custody unless he is under an imminent threat of serious physical injury. The court also certified that an appeal would not be taken in good faith and denied permission to appeal without paying the fee.