Shepherd v. Keyser
- Kenneth Karas
- 7:21-cv-02363
- U.S. District Court · Southern District of New York
- 7
In Shepherd v. Keyser, Judge Swain denied reconsideration of dismissal under the PLRA three-strikes rule but granted 30 days to pay fees.
Eon Shepherd, the self-represented plaintiff, must pay the $402 filing fee within 30 days to bring the action; otherwise, the court stated it would dismiss the action without prejudice. The defendants were not given a merits ruling in this order.
What happened
In Shepherd v. Keyser, Eon Shepherd, who was representing himself, asked the court to reconsider its earlier dismissal of his civil-rights case. The earlier dismissal found that he had three prior qualifying dismissals and had not shown that he faced imminent danger when he filed the case.
The court rejected Shepherd’s argument that his medical conditions and earlier treatment allegations met the imminent-danger exception. It noted that the alleged events occurred years earlier, at different facilities from the one where he was housed when he filed the case, and that he requested only money damages.
Judge Laura Taylor Swain denied reconsideration but granted Shepherd 30 days to pay the $402 filing fee to bring the action. The court stated that failing to pay within that period would result in dismissal without prejudice, and it denied fee-free status for any appeal.
The detailed version
- Shepherd v. Keyser · No. 7:21-cv-02363
- Kenneth Karas
- July 2, 2021
Background
Eon Shepherd filed this action without a lawyer. On May 7, 2021, the court dismissed his complaint without prejudice under the Prison Litigation Reform Act's “three-strikes” rule, 28 U.S.C. § 1915(g). That rule generally prevents a prisoner with at least three prior qualifying dismissals from proceeding without paying the filing fee unless the prisoner alleges that he was in imminent danger of serious physical injury.
Shepherd appealed the May 7 order and then submitted a letter asking the district court to reconsider. The court treated the letter as motions to alter or amend the judgment, for reconsideration under the court's local rules, and alternatively for relief from the order. Shepherd argued that his allegations satisfied the imminent-danger exception and said he had not been given an opportunity to pay the filing fee.
Court's analysis
The court concluded that it had authority to consider the motions even though Shepherd had filed a notice of appeal because the motions were filed within the applicable 28-day period.
The court denied reconsideration. It explained that the imminent-danger exception requires the danger to exist when the complaint is filed and requires a connection between that danger and the claims in the complaint. Shepherd described herniated discs, knee instability, vision problems, removed medical devices, and untreated headaches. But the court found that neither the complaint nor the motion alleged facts showing imminent danger of serious physical injury when the complaint was filed in March 2021.
The court emphasized that the allegations mainly concerned events from 2018 through 2020, including events at Downstate, Sullivan, and Five Points correctional facilities. Shepherd was housed at Green Haven Correctional Facility when he filed the complaint, and he sued officials connected to Sullivan rather than people alleged to control his conditions at Green Haven. The court also noted that he sought punitive damages rather than an order requiring treatment or other immediate relief. The court therefore denied the motion to reconsider its finding that Shepherd did not qualify for the imminent-danger exception.
Disposition
The court denied Shepherd's motion for reconsideration. It granted him 30 days from the date of the order to tender the $402 filing fee to bring the action. If he failed to pay within that period, the court stated that it would dismiss the action without prejudice. The court also denied fee-free status for an appeal, certifying that an appeal would not be taken in good faith.
The order addressed the filing-fee and imminent-danger requirements; it did not decide the underlying constitutional claims described in Shepherd's complaint.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.