Spencer Nimham El Dey v. DOC
- Laura Swain
- 1:22-cv-04027
- U.S. District Court · Southern District of New York
- 2
In Spencer Nimham El Dey v. DOC, Judge Swain denied fee-waiver status and dismissed the action without prejudice under the prisoner three-strikes rule.
Abdullah Spencer Nimham El Dey’s ability to proceed without paying the filing fee in this action and in future federal civil actions while he is a prisoner; the action against DOC and the other defendants was dismissed without prejudice.
What happened
In Spencer Nimham El Dey v. DOC, Abdullah Spencer Nimham El Dey, who was detained on Rikers Island and represented himself, sued DOC and others. He asked to proceed without paying the filing fee and alleged that correction officers stole his personal property.
The court said he had previously accumulated three qualifying dismissals, barring him from filing a new federal civil action without paying the fee while imprisoned. The exception for a prisoner facing imminent danger of serious physical injury did not apply because his complaint did not show that danger.
Judge Laura Taylor Swain denied the fee-waiver request and dismissed the action without prejudice under the prisoner three-strikes rule. The order said he could start a new federal civil action by paying the required fees, and it denied fee-waiver status for an appeal because an appeal would not be taken in good faith.
The detailed version
- Spencer Nimham El Dey v. DOC · No. 1:22-cv-04027
- Laura Swain
- July 14, 2022
Background
Abdullah Spencer Nimham El Dey filed the action while detained on Rikers Island and represented himself. He requested permission to proceed without paying the filing fee. The opinion says his complaint alleged that correction officers stole his personal property.
Legal standard
The court applied 28 U.S.C. § 1915(g), part of the Prison Litigation Reform Act. This provision generally prevents a prisoner from proceeding without paying the filing fee if the prisoner previously brought three or more federal actions or appeals that were dismissed as frivolous, malicious, or for failing to state a claim. The exception applies when the prisoner is under imminent danger of serious physical injury at the time the complaint is filed.
The court relied on the finding in a prior related proceeding that El Dey had accumulated three qualifying dismissals before filing this action. Although this action was filed before the bar order was entered, the court said he was already effectively barred under § 1915(g) when he filed the complaint.
Application and ruling
The court found that the complaint did not show imminent danger of serious physical injury. It therefore concluded that El Dey was barred from proceeding without paying the filing fee.
The court denied Plaintiff’s request to proceed without paying the filing fee and dismissed this action without prejudice under the Prison Litigation Reform Act’s three-strikes rule. It also stated that El Dey remained barred from filing future federal civil actions without paying the filing fee while he was a prisoner, unless he was under imminent danger of serious physical injury. The court terminated all other pending matters.
Judge Laura Taylor Swain certified that an appeal from the order would not be taken in good faith and denied fee-waiver status for purposes of an appeal. The order noted that El Dey could commence a new federal civil action by paying the required fees; any such prisoner civil-rights complaint would then be reviewed under the statutory screening provisions.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.