Combs v. United States of America
- Laura Swain
- 1:22-cv-07244
- U.S. District Court · Southern District of New York
- 4
In Combs v. United States of America, Judge Swain ordered Marita Talley Combs to explain why the three-strikes rule should not block fee-free filing.
Marita Talley Combs and the status of her request to proceed without paying filing fees; the case was not yet dismissed by this order.
What happened
In Combs v. United States of America, Marita Talley Combs filed the case without a lawyer and asked to proceed without paying filing fees. Her claims objected to the use of a racial slur and sought to end its use nationwide.
The court found that Combs appeared to have at least three prior federal cases or appeals dismissed for being frivolous or for failing to state a valid claim. The court also found that she had not alleged facts showing that she faced an immediate risk of serious physical injury when she filed this case.
Judge Laura Taylor Swain gave Combs 30 days to explain, in a written declaration, why the three-strikes rule should not apply. The order says that if she does not respond or does not show cause, the court will deny her fee-free filing request and dismiss the case without prejudice; the court separately denied fee-free status for any appeal from this order.
The detailed version
- Combs v. United States of America · No. 1:22-cv-07244
- Laura Swain
- Sept. 28, 2022
Background
Marita Talley Combs, also identified in the opinion as Marita Talley or Marita Turner, filed this action without a lawyer and requested permission to proceed without paying filing fees. She asserted claims against the United States of America and “the Southern State of New York,” which the court understood to mean the Southern District of New York. The opinion says she objected to the use of a particular racial slur in the United States and in the Southern District of New York and sought to abolish its use nationwide.
Three-strikes issue
The Prison Litigation Reform Act prevents a prisoner from proceeding without paying fees in a federal civil action if the prisoner has, on three or more prior occasions while incarcerated or detained, brought an action or appeal that was dismissed as frivolous, malicious, or for failure to state a claim. The exception is when the prisoner was under imminent danger of serious physical injury when the complaint was filed.
The court identified at least three qualifying prior dismissals involving Combs, including one described as a fourth strike. The court found that her complaint did not allege facts suggesting imminent danger of serious physical injury at the time she filed it. The order therefore stated that she appeared to be barred from proceeding without paying fees while she remained a prisoner.
Order and current status
Because a person proceeding without a lawyer generally must receive notice and an opportunity to respond before an unfavorable final decision, the court issued an order to show cause. Combs must submit a declaration within 30 days explaining why the court should not treat her as barred under the three-strikes rule. The order does not make the anticipated denial of her fee-free filing request or dismissal the current disposition. Instead, it states that if she does not respond or does not show cause, the court will recognize the bar, deny her application to proceed without paying fees, and dismiss the action without prejudice.
The court also certified under 28 U.S.C. § 1915(a)(3) that an appeal from the order would not be taken in good faith and denied fee-free status for purposes of an appeal. Judge Laura Taylor Swain signed the order.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.