Kelsey v. Sherman
- Vincent Briccetti
- 7:22-cv-01934
- U.S. District Court · Southern District of New York
- 3
In Kelsey v. Sherman, Judge Swain ordered Michael N. Kelsey to explain why the prisoner three-strikes rule should not block fee-free filing.
Michael N. Kelsey’s request to proceed without paying filing fees; the action itself was not yet dismissed.
What happened
In Kelsey v. Sherman, Michael N. Kelsey, who is incarcerated at Hudson Correctional Facility and is representing himself, challenged the constitutionality of New York State’s sex-offender registration laws and requested permission to file without paying court fees.
The court found that Kelsey had accumulated at least three qualifying dismissals under the Prison Litigation Reform Act’s three-strikes rule. The court also found that he had not alleged facts showing that he faced an immediate risk of serious physical injury when he filed the case.
The court gave Kelsey 30 days to submit a declaration explaining why the rule should not bar his fee-free filing. Judge Laura Taylor Swain stated that, if Kelsey does not respond or does not make that showing, the court will deny his fee-waiver request and dismiss the action without prejudice; the court also denied fee-free status for any appeal from this order.
The detailed version
- Kelsey v. Sherman · No. 7:22-cv-01934
- Vincent Briccetti
- Apr. 4, 2022
Background
Michael N. Kelsey filed the action without a lawyer while incarcerated at Hudson Correctional Facility. He challenged the constitutionality of New York State’s sex-offender registration laws and requested permission to proceed without paying the filing fees.
Three-strikes finding
The Prison Litigation Reform Act generally prevents a prisoner from proceeding without paying fees if the prisoner has had three or more earlier federal actions or appeals dismissed as frivolous, malicious, or for failure to state a legally sufficient claim. An exception applies when the prisoner faced an imminent danger of serious physical injury when the complaint was filed.
The court found that Kelsey had accumulated at least three qualifying strikes based on earlier related proceedings. The court identified dismissals involving failure to state a claim, frivolousness, and judicial immunity. The court also noted that an appeal remained pending in one of those earlier proceedings. It concluded that Kelsey was barred under 28 U.S.C. § 1915(g) from bringing a federal civil action without paying the fees unless the imminent-danger exception applied.
The court found that Kelsey had not alleged facts suggesting that he faced imminent danger of serious physical injury when he filed this action. Instead, the complaint challenged sex-offender registration laws.
Opportunity to respond
Because Kelsey was representing himself, the court gave him notice and an opportunity to respond before making a final unfavorable decision about his fee-waiver request. The court granted him leave to submit a declaration within 30 days explaining why the three-strikes rule should not bar him from proceeding without paying the filing fees.
Disposition
The court ordered Kelsey to show cause under Section 1915(g). It did not yet deny his application or dismiss the action. The order states that if Kelsey fails to respond or fails to show that the three-strikes rule does not apply, the court will deny his application to proceed without paying fees and dismiss the action without prejudice under Section 1915(g). The court also certified that an appeal from the order would not be taken in good faith and denied fee-free status for purposes of an appeal.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.