El Dey v. Brann
- Jesse Furman
- 1:20-cv-07208
- U.S. District Court · Southern District of New York
- 2
In El Dey v. Brann, Judge Furman denied defendants’ motion to revoke the prisoner’s fee-waiver status because the cited dismissals came later.
The order left Abdullah Spencer El Dey’s permission to proceed without paying filing fees in place, denied the defendants’ motion, and set a deadline concerning whether the case would continue.
What happened
In El Dey v. Brann, the defendants asked the court to revoke Abdullah Spencer El Dey’s permission to proceed without paying filing fees. The motion was not opposed.
The court explained that the law counts certain earlier dismissed cases as “strikes,” and prisoners with three or more strikes generally cannot proceed without paying fees. But all four cases the defendants identified were filed after this case began, so they did not count for this case.
Judge Jesse M. Furman denied the motion. He also ordered El Dey to tell the court by October 17, 2022, whether he intended to continue the case, warning that the case would otherwise be dismissed for failure to prosecute without further notice.
The detailed version
- El Dey v. Brann · No. 1:20-cv-07208
- Jesse Furman
- Sept. 16, 2022
Background
On July 11, 2022, the defendants moved to revoke Abdullah Spencer El Dey’s in forma pauperis status, meaning his permission to litigate without paying the filing fee. The motion was unopposed.
Reasoning
The Prisoner Litigation Reform Act generally prevents a prisoner from proceeding without paying filing fees if the prisoner has, on three or more prior occasions, filed cases or appeals that were dismissed as frivolous, malicious, or for failing to state a legally sufficient claim. These dismissals are commonly called “strikes.”
The defendants identified four cases filed by El Dey that had been dismissed as meritless. The court held that none counted as strikes for this case because all four cases were filed after El Dey filed this case.
Ruling and Further Orders
The court denied the defendants’ motion to revoke El Dey’s in forma pauperis status and directed the Clerk of Court to terminate ECF No. 55.
The court noted that El Dey had not filed anything since September 30, 2021, and had not responded to the motion. It ordered him to file a letter by October 17, 2022, stating whether he intended to continue prosecuting the case. The court stated that, if it received no communication by that date, it would dismiss the case for failure to prosecute without further notice. If El Dey filed the letter, the defendants could file a summary-judgment motion within three weeks after the letter was docketed. The court also ordered defense counsel to investigate El Dey’s current whereabouts, serve the order at any addresses where he might be residing by September 23, 2022, and file proof of service by September 27, 2022.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.