Berry v. United States Department of the Treasury
- Louis Stanton
- 1:21-cv-01377
- U.S. District Court · Southern District of New York
- 5
In Berry v. United States Department of the Treasury, Judge Stanton ordered Duane L. Berry to explain why fee-free filing should not be denied under the three-strikes rule.
Duane L. Berry, a prisoner representing himself, must respond within 30 days to try to avoid denial of permission to proceed without paying filing fees. The case could be dismissed without prejudice if he does not respond or does not make the required showing.
What happened
In Berry v. United States Department of the Treasury, Duane L. Berry, a prisoner representing himself, filed a case without paying the filing fee or submitting an application to proceed without paying it. The court treated the filing as a request for that status.
The court found that Berry had accumulated at least three prior qualifying dismissals under the Prison Litigation Reform Act’s three-strikes rule. The opinion also states that Berry did not allege an immediate danger of serious physical injury and that he seeks forfeiture of property belonging to former President Donald J. Trump.
Judge Stanton gave Berry 30 days to submit a declaration explaining why the three-strikes rule should not apply. The court has not yet denied fee-free filing or dismissed the case; it stated that it will do so without prejudice if Berry does not respond or does not make the required showing.
The detailed version
- Berry v. United States Department of the Treasury · No. 1:21-cv-01377
- Louis Stanton
- Mar. 1, 2021
Background
Duane L. Berry filed the action without a lawyer. He did not prepay the filing fees or submit an application to proceed in forma pauperis, meaning without paying the filing fees. The court therefore assumed that he was seeking that status.
The opinion states that Berry is a prisoner at Federal Medical Center, Butner. It also states that he identifies himself as a “FEDERAL TRUSTEE” and seeks forfeiture of property belonging to former President Donald J. Trump.
Three-strikes finding
The Prison Litigation Reform Act generally bars a prisoner from proceeding without paying filing fees when the prisoner has, on three or more prior occasions while incarcerated or detained, brought an action or appeal that was dismissed as frivolous, malicious, or for failure to state a claim. An exception applies if the prisoner was under imminent danger of serious physical injury when the complaint was filed.
The court found that Berry had accumulated three or more qualifying dismissals and was therefore barred from filing actions without paying the fees under 28 U.S.C. § 1915(g). The court also found that Berry did not allege facts suggesting that he was under imminent danger of serious physical injury.
Order to show cause
Because a self-represented litigant generally must receive notice and an opportunity to respond before an unfavorable final decision, the court ordered Berry to show cause why he should not be denied permission to proceed without paying the fees. The court granted him leave to submit a declaration showing that, while incarcerated, he had not filed three or more cases dismissed as frivolous, malicious, or for failure to state a claim.
Berry must submit the declaration within 30 days. The court directed the Clerk of Court to mail him the order and record service on the docket.
Disposition and possible next step
This order does not itself deny Berry permission to proceed without paying fees or dismiss the action. It directs him to respond. If he does not show cause or does not respond, the court stated that it will deny permission to proceed without paying fees, dismiss the action without prejudice, and bar him under § 1915(g) from filing future actions without paying fees while he is a prisoner. The order also states that Berry is not barred from filing a new case by prepaying the filing fees.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.