Fulton v. Capra
- Colleen McMahon
- 1:21-cv-00339
- U.S. District Court · Southern District of New York
- 5
In Fulton v. Capra, Chief Judge McMahon ordered Alvin Fulton to explain why his fee waiver should not be denied under the three-strikes rule.
Alvin Fulton is required to respond within 30 days to try to avoid denial of his application to proceed without prepaying the filing fee. The order affects whether he may continue this action without paying the fee and whether the three-strikes bar will apply to future filings while he is a prisoner.
What happened
In Fulton v. Capra, Alvin Fulton, a prisoner proceeding without a lawyer, asked to file his case without paying the filing fee. The court found that he had three prior qualifying dismissals under the Prison Litigation Reform Act’s three-strikes rule.
The court also found that Fulton had not alleged an ongoing serious physical danger. His allegations concerned toxic smoke and medical care at Sing Sing Correctional Facility in 2018, and he had since been moved to another facility.
Chief Judge Colleen McMahon gave Fulton 30 days to submit a declaration explaining why the three-strikes rule should not apply. If he does not respond or cannot show a reason, the court said it will deny his fee-waiver application, dismiss this action without prejudice, and bar him from filing future cases without paying the fee while he is a prisoner.
The detailed version
- Fulton v. Capra · No. 1:21-cv-00339
- Colleen McMahon
- Feb. 16, 2021
Background
Alvin Fulton, identified in the order as a prisoner at Greene Correctional Facility, filed this action without a lawyer and requested permission to proceed without paying the filing fee. The order names Michael Capra, W. Wyllie, and a John Doe corrections officer as defendants. The order concerns whether Fulton may proceed without prepaying the filing fee; it does not decide the underlying claims.
Three-strikes rule
The Prison Litigation Reform Act generally bars a prisoner from proceeding without prepaying the filing fee if the prisoner has had three or more prior federal cases or appeals dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner was in imminent danger of serious physical injury when the new case was filed.
The court found that Fulton had accumulated three qualifying strikes. The order identifies three prior related proceedings: one complaint dismissed for failure to state a claim and because the defendant was immune from suit, and two appeals dismissed as frivolous or because they lacked an arguable legal or factual basis.
The court also found that Fulton did not allege facts showing imminent danger of serious physical injury. His allegations concerned defendants’ alleged failure to protect him promptly from toxic smoke from a fire in a nearby cell and their alleged failure to provide constitutionally adequate medical care in 2018 at Sing Sing Correctional Facility. The order states that Fulton had since been moved to another facility.
Order to show cause
Because a pro se litigant generally must receive notice and an opportunity to respond before an unfavorable final decision, Judge Colleen McMahon gave Fulton leave to submit a declaration. He must file it within 30 days and explain why he should not be barred from proceeding without prepaying the filing fee.
The order does not yet deny Fulton’s application or dismiss the action. It states that, if Fulton does not show cause or does not respond, the court will deny his application to proceed without prepaying the fee, dismiss the action without prejudice, and bar him under the three-strikes rule from filing future actions without prepaying the filing fee while he is a prisoner. The court also certified that any appeal from the order would not be taken in good faith and denied permission to appeal without prepaying the fee.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.