Walton v. Mukasey

Background

Andre Walton, who was confined at Odyssey House, a court-ordered drug treatment facility, brought this action without a lawyer. He asked to proceed without prepaying the filing fee, a status commonly called proceeding in forma pauperis. Walton named former Chief Judge Michael B. Mukasey as a defendant and alleged that Judge Mukasey’s dismissals of Walton’s prior actions were abuses of discretion.

Three-Strikes Rule

The Prison Litigation Reform Act provides that a prisoner may not bring a civil action without prepaying 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 exception is when the prisoner is under an imminent danger of serious physical injury.

The court relied on an earlier order holding that Walton had three qualifying strikes. The court also stated that the dismissal of Walton’s appeal in that earlier matter as frivolous counted as an additional strike. Walton argued that the earlier dismissals had been erroneous, but the court said this action was not an opportunity to reconsider those prior rulings. The court further found that Walton’s complaint did not show an imminent danger of serious physical injury. Allegations that Judge Mukasey had improperly dismissed earlier actions did not satisfy that requirement.

Disposition

The court denied Walton’s request to proceed without prepaying the filing fee and dismissed the complaint without prejudice under 28 U.S.C. § 1915(g). Walton may start a new action by paying the filing fee. If he does so, the complaint will be reviewed under the prisoner-screening provision in 28 U.S.C. § 1915A. The court stated that Walton remains barred from filing future actions without prepaying the fee while in custody unless he is under an imminent threat of serious physical injury.

The court certified under 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and denied fee-free status for an appeal. Judge Colleen McMahon issued the order.