Wingate v. Polcovich
- Laura Swain
- 1:21-cv-04899
- U.S. District Court · Southern District of New York
- 2
In Wingate v. Pocovich, Judge Swain dismissed Wingate’s complaint without prejudice because the prisoner could not proceed without prepaying fees under the three-strikes rule.
Blake Wingate was affected directly: his complaint was dismissed without prejudice, he remained barred from proceeding without prepaying filing fees while incarcerated unless the immediate-danger exception applies, and payment-free status was denied for an appeal.
What happened
In Wingate v. Pocovich, Blake Wingate, an incarcerated person representing himself, sued over allegedly inadequate medical care and the loss of his legal papers. He had not prepaid the filing fee and sought to proceed without paying it upfront.
The court said Wingate was barred by the federal three-strikes rule because he had previously accumulated qualifying dismissals. The complaint also did not show that he faced an immediate danger of serious physical injury, and the court said the claims arose outside the Southern District of New York.
Judge Laura Taylor Swain dismissed the complaint without prejudice. Wingate remains barred from proceeding without prepaying the fee while incarcerated unless he alleges an immediate danger of serious physical injury. The court also denied payment-free status for any appeal.
The detailed version
- Wingate v. Polcovich · No. 1:21-cv-04899
- Laura Swain
- June 3, 2021
Background
Blake Wingate, who was incarcerated at Five Points Correctional Facility and represented himself, filed a civil action without prepaying the filing fee. He alleged that, during more than 30 years in the custody of the New York State Department of Corrections and Community Supervision, he had received inadequate medical care. He also alleged that a bag containing 100 pounds of legal papers was intentionally misplaced when he was transferred between correctional facilities.
Court’s analysis
The Prison Litigation Reform Act’s three-strikes rule, 28 U.S.C. § 1915(g), generally prevents an incarcerated person from bringing a civil action without prepaying the filing fee after three or more prior qualifying cases or appeals were dismissed as frivolous, malicious, or legally insufficient. The court stated that Wingate was already barred under this rule based on an earlier order.
An exception applies when the complaint shows that the prisoner faces an immediate danger of serious physical injury. The court found that Wingate’s complaint did not allege facts showing that danger. The court also explained that, even if such a danger existed, Wingate was incarcerated outside the Southern District of New York and his claims arose outside that district, so this action could not provide the relief he sought. The order noted that Wingate could bring claims about his current medical treatment in the appropriate district by paying the filing fee or alleging facts showing an immediate danger.
Disposition
The court dismissed Wingate’s complaint without prejudice under the three-strikes rule. It stated that Wingate remains barred from bringing future actions without prepaying the filing fee while incarcerated unless he is under an immediate danger of serious physical injury. The court also certified that an appeal would not be taken in good faith and denied payment-free status for purposes of an appeal. Judge Laura Taylor Swain directed the Clerk of Court to mail Wingate a copy of the order and note service on the docket.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.