Vasquez v. Cullen

Background

Kim Vasquez, who was detained at the Rockland County Correctional Facility, brought this civil-rights action without a lawyer against Officer Patrick Cullen, identified in the caption as an officer of the New York State Department of Corrections and Community Supervision, and other defendants. Vasquez alleged that defendants used excessive force while arresting him on a parole-violation warrant at his family’s house in New City, New York, on February 8, 2018. He filed this action more than two years and seven months after those alleged events.

Vasquez asked to proceed without prepaying the filing fee. The Prison Litigation Reform Act’s three-strikes rule generally prevents a detained or incarcerated person from proceeding without prepaying the fee after at least three earlier federal actions or appeals were dismissed as frivolous, malicious, or for failing to state a legally valid claim. The exception applies when the complaint alleges that the person faced an imminent danger of serious physical injury when the complaint was filed.

Prior strikes

The court had earlier found that Vasquez was barred by the three-strikes rule, but it reviewed the record again because the United States Court of Appeals for the Second Circuit had held that a case dismissed partly on strike grounds and partly on non-strike grounds does not count as a strike. The court determined that two earlier proceedings previously treated as strikes were mixed dismissals and no longer qualified.

The court nevertheless found at least three other earlier actions that had been dismissed entirely on strike grounds: one for failure to state a claim, one as frivolous under judicial immunity, and one as time-barred. The court therefore concluded that Vasquez had at least three qualifying strikes when he filed this case.

Imminent-danger exception

The court explained that imminent danger must exist when the complaint is filed and must be connected to the claims in the complaint. Vasquez’s claims concerned alleged conduct during the February 8, 2018 arrest. Because any danger from that arrest had ended by the time he filed this action, the court found that he had not alleged facts showing that the exception applied.

Ruling

Judge Louis L. Stanton denied Vasquez’s application to proceed without prepaying the filing fee and dismissed the action without prejudice under the Prison Litigation Reform Act’s three-strikes rule. The court stated that Vasquez could commence a new action by paying the filing fee. It also stated that he remained barred from filing future actions without prepaying the fee while in custody unless he alleged an imminent threat of serious physical injury. The order did not decide whether the excessive-force allegations were legally or factually valid.