Shepherd v. Keyser

Background

Eon Shepherd, who was incarcerated at Green Haven Correctional Facility and proceeding without a lawyer, filed a civil action against the listed defendants. He asked to proceed without paying the filing fee, a status commonly called proceeding in forma pauperis.

The Prison Litigation Reform Act’s “three-strikes” provision, 28 U.S.C. § 1915(g), generally bars a prisoner from proceeding without paying the filing fee if the prisoner previously brought at least three federal actions or appeals that were dismissed as frivolous, malicious, or for failure to state a claim. The exception applies when the prisoner is under imminent danger of serious physical injury.

Three-strikes determination

The court noted that other federal courts had previously determined that Shepherd had at least three strikes. Those courts identified three earlier actions that were dismissed under the former version of 28 U.S.C. § 1915(d): Shepherd v. Conroy, Shepherd v. Fraisher, and Shepherd v. Harwood. The court also noted that Shepherd had previously had opportunities to challenge whether those dismissals counted as strikes, but had not disputed that point in the proceedings discussed.

The court concluded that issue preclusion— the rule that prevents a party from relitigating an issue already decided after a full and fair opportunity to litigate it—appeared to bar Shepherd from contesting the three-strikes determination again. Independently, the court reviewed the available docket information and concluded that all three earlier dismissals qualified as strikes. It held that, while incarcerated, Shepherd had filed at least three actions or appeals dismissed as frivolous or malicious, or for failure to state a claim.

Imminent-danger exception

The court then considered whether Shepherd qualified for the exception to the three-strikes rule. It concluded that his complaint did not show that he was in imminent danger of serious physical injury. The court stated that the complaint asserted constitutional claims arising from events occurring between 2018 and 2020, but it did not find the required imminent danger at the time the complaint was filed.

Disposition

The court denied Shepherd’s request to proceed without paying the filing fee and dismissed the complaint without prejudice under the Prison Litigation Reform Act’s three-strikes rule. The opinion states that Shepherd may start a new action by paying the filing fees, after which the complaint would be subject to prisoner screening under 28 U.S.C. § 1915A. The court also certified that an appeal would not be taken in good faith and denied fee-free status for purposes of an appeal. The ruling did not resolve the merits of Shepherd’s constitutional claims.