Spencer Nimham El Dey v. DOC
- Laura Swain
- 1:22-cv-04028
- U.S. District Court · Southern District of New York
- 5
In Abdullay Spencer Nimham El Dey v. DOC, Judge Swain ordered a response before possibly denying fee waiver under the three-strikes rule and dismissing the case.
The order affects Abdullay Spencer Nimham El Dey’s ability to proceed without prepaying filing fees and to file future actions without prepaying fees while incarcerated. It did not yet dismiss this action; it gave him 30 days to respond.
What happened
Abdullay Spencer Nimham El Dey v. DOC concerns the plaintiff’s request to proceed without prepaying the filing fee while detained on Rikers Island. He filed the action without a lawyer and alleged that correctional officers and medical staff stole his intellectual property.
The court found that the plaintiff had accumulated three qualifying prior dismissals under the Prison Litigation Reform Act’s three-strikes rule. It also found that he had not alleged facts showing an immediate risk of serious physical injury.
The court did not yet issue the proposed final disposition. Judge Laura Taylor Swain ordered the plaintiff to submit a declaration within 30 days explaining why the fee waiver should not be denied. Without that showing or a response, the court will deny the application, dismiss the action without prejudice, and bar future fee-free filings while he is incarcerated.
The detailed version
- Spencer Nimham El Dey v. DOC · No. 1:22-cv-04028
- Laura Swain
- May 31, 2022
Background
Abdullay Spencer Nimham El Dey, who was detained on Rikers Island, filed the action without a lawyer and asked to proceed without prepaying the filing fee. The court noted that he had not submitted a required prisoner authorization. His allegations concerned correctional officers and medical staff whom he accused of stealing his intellectual property, including designs related to NASA and Elon Musk’s space program.
Three-strikes finding
The Prison Litigation Reform Act generally prevents a prisoner from proceeding without prepaying filing fees when the prisoner has had three or more earlier cases or appeals dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner faced an immediate danger of serious physical injury when filing the new action.
The court found that the plaintiff had three qualifying prior dismissals: two in the Southern District of New York and one in the Eastern District of New York. The court determined that the differently spelled names used in those cases belonged to the plaintiff because the cases carried the same prison identification number. The court also found no allegations suggesting that the plaintiff faced an immediate danger of serious physical injury when he filed this action.
Order to show cause
Because the court found that the three-strikes rule barred the plaintiff from proceeding without prepaying fees, it ordered him to show cause by declaration why his fee-waiver application should not be denied. The declaration must be filed within 30 days and may explain why the three-strikes rule should not apply. The court gave this opportunity because a person litigating without a lawyer generally must receive notice and an opportunity to respond before an unfavorable final decision.
If the plaintiff does not make the required showing or does not respond, the court stated that it will deny his application to proceed without prepaying fees, dismiss the action without prejudice, and bar him from filing future actions without prepaying fees while he is a prisoner. The court also stated that he may file a new action if he prepays the entire filing fee. Separately, the court certified that any appeal from the order would not be taken in good faith and denied fee-waiver status for an appeal.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.