Byrd v. Perrigo Manufacturing Co.

Background

Thomas Byrd, who was incarcerated at Centralia Correctional Center and proceeding without a lawyer, sued Perrigo Manufacturing Co. He alleged that a topical cream manufactured or distributed by Perrigo caused him tumors. Byrd asked to proceed without prepaying the filing fee, a status commonly called proceeding in forma pauperis, or IFP.

Three-Strikes Rule

The Prison Litigation Reform Act bars a prisoner from bringing a civil action without prepaying the filing fee if the prisoner previously had three or more federal actions or appeals dismissed as frivolous, malicious, or for failure to state a claim. The exception is when the prisoner is under imminent danger of serious physical injury.

The opinion relied on an earlier order in a related proceeding that found Byrd had four qualifying dismissals. The court explained that imminent danger must exist when the complaint is filed. It concluded that Byrd's complaint did not show that he was then in imminent danger of serious physical injury.

Ruling

The court denied Byrd's request to proceed IFP and dismissed the complaint without prejudice under the three-strikes rule in 28 U.S.C. § 1915(g). The order also stated that Byrd remained barred from filing future actions without prepaying fees while he was a prisoner unless he faced an imminent threat of serious physical injury. It said he could commence a new action by paying the filing fee. The order did not decide whether the topical cream caused tumors or whether Byrd's underlying claims were legally valid.