Potter v. People of the State of New York

Background

Donald J. Potter, a prisoner proceeding without a lawyer, filed this action against the People of the State of New York; District Attorney David Hoovler; Assistant District Attorneys Janine Kovacs and Robert DeMono; and Criminal Court Judge Robert Freehill. He asked to proceed without prepaying the filing fee, a status commonly called proceeding in forma pauperis.

The court applied the Prison Litigation Reform Act’s three-strikes provision, 28 U.S.C. § 1915(g). That provision generally bars a prisoner from proceeding without prepaying fees after three prior actions or appeals, filed while incarcerated or detained, were dismissed as frivolous, malicious, or for failure to state a claim. The court found that Potter had three qualifying strikes based on earlier related proceedings. It also stated that Potter had not alleged facts showing that he was under an imminent danger of serious physical injury, which is an exception to the three-strikes bar.

Order to Show Cause

Because a pro se litigant generally must receive notice and an opportunity to respond before an unfavorable final decision, the court ordered Potter to show cause why his fee-waiver application should not be denied. The court granted him leave to submit a declaration explaining any reason why the three-strikes provision should not apply. He must file the declaration within 30 days.

The court noted that it did not need to decide whether another earlier dismissal counted as a strike because it had identified three other dismissals that qualified. The opinion does not finally resolve Potter’s fee-waiver application or dismiss the current action at this stage.

Conditional consequences and appeal

The order states that if Potter does not show cause or does not respond, the court will deny his application to proceed without prepaying the filing fee, dismiss this action without prejudice, and bar him under § 1915(g) from filing future civil actions without prepaying fees while he is a prisoner. The order also states that Potter is not barred from filing a new case if he pays the filing fee.

Judge Laura Taylor Swain certified that an appeal from the order would not be taken in good faith and denied in forma pauperis status for purposes of an appeal. The Clerk of Court was directed to mail Potter a copy of the order and note service on the docket.