Lurch, Jr. v. NYCHHC
- Andrew Carter
- 1:21-cv-01567
- U.S. District Court · Southern District of New York
- 2
In Lurch Jr. v. NYCHHC, Judge McMahon denied IFP and dismissed the complaint without prejudice under the prisoner three-strikes rule.
Robert Derek Lurch Jr., a detained prisoner who represented himself, could not proceed without prepaying the filing fee under the three-strikes rule. The complaint was dismissed without prejudice, and the order continued the bar on filing future actions without prepaying the fee while he remained in custody unless the imminent-danger exception applied.
What happened
Robert Derek Lurch Jr. v. NYCHHC involved a complaint by Lurch, who was detained and represented himself. He asked to proceed without paying the filing fee. Lurch alleged that defendants violated the constitutional rights of detainees between December 5 and December 22, 2019, by failing to isolate people with flu or flu-like symptoms.
The court said Lurch had previously accumulated at least three qualifying dismissals, which generally prevents a detained prisoner from filing a new case without paying the fee. The exception applies when the complaint shows an imminent danger of serious physical injury, but the court found that Lurch’s complaint did not show such a danger at the time it was filed.
Judge Colleen McMahon denied Lurch’s request to proceed without paying the filing fee and dismissed the complaint without prejudice under the prisoner three-strikes rule. The court also denied fee-free status for an appeal and said any future case filed while Lurch remains in custody must include the filing fee unless it alleges an imminent threat of serious physical injury.
The detailed version
- Lurch, Jr. v. NYCHHC · No. 1:21-cv-01567
- Andrew Carter
- Feb. 23, 2021
Background
Robert Derek Lurch Jr., who was detained at the Anna M. Kross Center on Rikers Island, filed the action without a lawyer. He requested permission to proceed without prepaying the filing fee. His complaint named NYCHHC and doctors who allegedly diagnosed or treated detainees with flu or flu-like symptoms but did not isolate them from the general population afterward.
Lurch alleged that defendants violated his constitutional rights and the rights of other detainees between December 5, 2019, and December 22, 2019. The opinion does not decide whether those allegations were legally valid.
Three-Strikes Rule
The Prison Litigation Reform Act generally prevents a detained prisoner from filing a civil action without prepaying the filing fee if the prisoner has previously had three or more federal cases or appeals dismissed as frivolous, malicious, or for failing to state a legally sufficient claim. An exception applies if the prisoner is under an imminent danger of serious physical injury. The court relied on an order from a prior related proceeding, No. 20-CV-9329 (S.D.N.Y.), stating that Lurch was barred from filing new actions without prepaying the fee.
The court concluded that this complaint did not show an imminent danger of serious physical injury. It noted that an imminent danger must exist when the complaint is filed and that a danger that has already ended is insufficient.
Rulings
Judge Colleen McMahon denied Lurch’s request to proceed without prepaying the filing fee and dismissed the complaint without prejudice under the Prison Litigation Reform Act’s three-strikes rule. The dismissal without prejudice means the order did not state that the complaint could never be brought again. The opinion states that Lurch may start a new action by paying the filing fee; that complaint would then be reviewed under the statutory screening process for prisoner civil-rights complaints.
The court also certified that an appeal from the order would not be taken in good faith and denied fee-free status for purposes of an appeal. The opinion states that Lurch remains barred from filing future actions without prepaying the fee while in custody unless he is under an imminent threat of serious physical injury.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.