Credell v. Allen

Background

Darnell Credell filed the action without a lawyer and asked to proceed in forma pauperis (IFP), meaning without prepaying the filing fee. He alleged that correction officers C.O. Allen and C.O. Watson failed to protect him from an assault by other prisoners at Fishkill Correctional Facility. He sought damages.

Before this order, the court had directed Credell to explain why the Prison Litigation Reform Act’s “three-strikes” rule should not prevent him from proceeding IFP while he was a prisoner. Under 28 U.S.C. § 1915(g), a prisoner who has had three or more actions or appeals dismissed as frivolous, malicious, or for failure to state a claim generally cannot file another action IFP.

Court’s analysis

The court found that Credell had three or more qualifying dismissals. Credell argued that one dismissal should not count because he had appealed it. The court rejected that argument, explaining that a dismissal can count as a strike while an appeal is pending.

Credell also described difficulties during his incarceration and argued that his earlier cases had merit. The court said it could not reconsider the decisions in those earlier cases in this lawsuit; those decisions had to be challenged through appeals or reconsideration motions in the earlier proceedings.

The court then considered the exception for a prisoner facing an imminent threat of serious physical injury. Credell’s complaint described a past assault. The court explained that past violence can sometimes qualify when it is part of an ongoing pattern, but found it unclear whether any danger was continuing when Credell filed the complaint. The complaint also sought damages from the correction officers for the earlier failure to protect him, and the court found that a favorable result would not redress an imminent danger. The court noted that Credell indicated he would no longer be in prison and that public records showed he had been released to parole.

Ruling

Judge Laura Taylor Swain denied Credell’s request to proceed IFP and dismissed the complaint under the three-strikes rule, without prejudice to Credell’s refiling the complaint with a new IFP request as a non-prisoner. The court also certified that an appeal would not be taken in good faith and denied IFP status for purposes of an appeal. The order did not decide the merits of Credell’s failure-to-protect allegations.