Fate v. The State of New York

Background

Forest L. Fate, who was incarcerated at Five Points Correctional Facility and proceeding without a lawyer, brought this civil action against the State of New York, police departments, task-force officers, and other defendants. He requested permission to proceed without paying the filing fee.

A prior district-court order had dismissed the action under the Prison Litigation Reform Act’s “three-strikes” rule, 28 U.S.C. § 1915(g). The Court of Appeals later vacated that order and sent the case back for reconsideration after clarifying that an entire action must be dismissed on a qualifying ground to count as a strike, and that a dismissal combining a qualifying ground with a nonqualifying ground does not count as a strike.

Three-strikes analysis

Section 1915(g) generally prevents a prisoner from proceeding without paying the filing fee if, while incarcerated, the prisoner previously filed at least three federal actions or appeals that were dismissed as frivolous, malicious, or for failing to state a claim. The exception is for a prisoner who is under an imminent danger of serious physical injury.

The court reconsidered one earlier dismissal and determined that it did not count as a strike because the earlier case included a request for release from custody that was dismissed for failure to exhaust state remedies. The court treated that as a habeas-related dismissal rather than a dismissal on a qualifying strike ground.

The court nevertheless identified at least four qualifying strikes in other prior proceedings. One earlier action had been dismissed as frivolous. Another had been dismissed for failure to state a claim after the court considered constitutional and disability-related claims. A third had been dismissed as legally frivolous and, alternatively, for failure to state a claim. The court also concluded that another earlier action, although dismissed without prejudice and involving a venue issue, had ultimately dismissed the entire action as frivolous after analyzing the claims.

Imminent-danger exception

The court found that Fate’s current complaint did not show an imminent danger of serious physical injury when it was filed. The complaint alleged a campaign of police harassment and retaliation beginning in 2015 and a physical assault in November 2018, but it did not allege that Fate was in physical danger at the time of filing.

Ruling and effect

The court denied Fate’s application to proceed without paying the filing fee and dismissed the complaint without prejudice under § 1915(g). It also ruled that Fate is barred from proceeding without paying the filing fee in future actions while incarcerated unless he is under an imminent threat of serious physical injury. The court stated that he may start a new federal civil action by paying the required fees, subject to prisoner-complaint screening. The court further certified that an appeal would not be taken in good faith and denied fee-free status for an appeal.