Walden v. The City of New York and Municipality of New York County

Background

John Walden, who was incarcerated and proceeding without a lawyer, filed this civil action and asked to proceed in forma pauperis, meaning without prepaying the required fees. The court had granted that request on June 15, 2021. Walden then paid the $350 filing fee, but the required administrative fee was $52, making the total fees $402.

The court reviewed Walden’s litigation history and found that he had filed three earlier civil actions while incarcerated that were dismissed as frivolous, malicious, or for failing to state a legally sufficient claim. Under 28 U.S.C. § 1915(g), the Prison Litigation Reform Act’s “three-strikes” provision, a prisoner with three such dismissals generally may not proceed without prepaying fees unless the prisoner faces an imminent danger of serious physical injury.

The opinion states that Walden’s current allegations concerned an alleged kidnapping, search, arrest, detention, and incarceration beginning in 2015. The court found that he had not alleged facts suggesting that he faced an imminent danger of serious physical injury when he filed this action.

Order to Show Cause

Because the court found that Walden had accumulated three strikes, it directed him to show cause by declaration why the order granting him permission to proceed without prepaying fees should not be vacated. The court gave him 30 days to explain why the three-strikes rule should not bar him from proceeding without prepaying fees. The court granted him notice and an opportunity to respond before making a final adverse decision on that issue.

Alternatively, Walden could continue the action by paying the additional $52 administrative fee within 30 days. The opinion states that paying the fee would allow the case to be processed, but would not remove the bar on Walden’s future fee-free civil filings while he remained incarcerated.

Disposition

The court directed Walden to show cause under § 1915(g). If he failed both to respond and to pay the $52 fee, the court stated that it would direct the Clerk to refund his $350 payment, vacate the order allowing him to proceed without prepaying fees, dismiss this action without prejudice, and bar him from filing future civil actions without prepaying fees while incarcerated. The court also certified that an appeal from the order would not be taken in good faith and denied fee-free status for an appeal. The order did not decide the underlying allegations against the defendants.