Tapp v. Cataloo
- Colleen McMahon
- 1:21-cv-00440
- U.S. District Court · Southern District of New York
- 3
In Tapp v. Cataloo, Chief Judge McMahon dismissed the complaint without prejudice because Tapp could not proceed without paying the filing fee under the three-strikes rule.
Sean E. Tapp's action against John Cataloo was dismissed without prejudice; the order also continued Tapp's bar on proceeding without paying filing fees while in custody, subject to the imminent-danger exception.
What happened
In Tapp v. Cataloo, Sean E. Tapp, who was incarcerated and representing himself, filed a complaint without paying the filing fee or applying to proceed without paying it. He alleged that his grievances were not being submitted and that he was denied a preliminary hearing.
The court said Tapp was barred from proceeding without paying the fee because he had previously had at least three cases or appeals dismissed for certain reasons. The exception for a prisoner facing an immediate danger of serious physical injury did not apply because his allegations did not show that kind of danger.
Chief Judge Colleen McMahon dismissed the complaint without prejudice under the three-strikes rule. Tapp may start a new action by paying the filing fee, and the court denied permission to appeal without paying the fee because any appeal would not be taken in good faith.
The detailed version
- Tapp v. Cataloo · No. 1:21-cv-00440
- Colleen McMahon
- Jan. 20, 2021
Background
Sean E. Tapp, who was incarcerated at Five Points Correctional Facility and proceeding without a lawyer, brought this civil action against John Cataloo. Tapp did not prepay the filing fee and did not submit an application to proceed without paying the fee. The court therefore treated the filing as an effort to proceed without paying the fee.
Tapp alleged that his “grievances are no longer turned in” and that he was “denied a preliminary hearing.” The opinion does not decide the underlying merits of those allegations.
Three-Strikes Rule
Under 28 U.S.C. § 1915(g), a prisoner generally cannot proceed without paying the filing fee if, on three or more prior occasions while incarcerated or detained, the prisoner brought an action or appeal that was dismissed as frivolous, malicious, or for failure to state a claim. The statute has an exception when the prisoner is in imminent danger of serious physical injury.
The court relied on prior related proceedings in concluding that Tapp was barred by this rule. It found that the allegations in this complaint did not show an imminent danger of serious physical injury. As a result, Tapp could not bring this action without prepaying the filing fee.
Disposition
The court dismissed the complaint without prejudice under the Prison Litigation Reform Act’s “three-strikes” rule. The dismissal did not resolve whether Tapp’s allegations against Cataloo were legally valid. The order states that Tapp may commence a new action by paying the filing fee; that action would then be subject to prisoner-complaint screening under 28 U.S.C. § 1915A.
Chief Judge Colleen McMahon also certified that an appeal from the order would not be taken in good faith and denied permission to appeal without paying the filing fee. The order further states that Tapp remains barred from proceeding without paying filing fees in future actions while in custody unless he alleges an imminent danger of serious physical injury.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.