DeBlasio v. The City of New York
- Laura Swain
- 1:22-cv-07190
- U.S. District Court · Southern District of New York
- 2
In DeBlasio v. The City of New York, Judge Swain denied IFP status and dismissed the complaint without prejudice under the PLRA three-strikes rule.
Philip E. DeBlasio was denied permission to file without prepaying the fee, and his complaint was dismissed without prejudice. While he remains in custody, he remains barred from filing future actions without prepaying fees unless he alleges an imminent threat of serious physical injury.
What happened
In DeBlasio v. The City of New York, Philip E. DeBlasio filed a lawsuit while incarcerated and asked to proceed without paying the filing fee. He alleged that he had been unlawfully incarcerated for 35 months after a 2018 conviction was reversed and dismissed in 2021.
The court said DeBlasio had previously accumulated at least three qualifying dismissals under the Prison Litigation Reform Act. That law generally prevents a prisoner with three such dismissals from filing a new case without paying the fee, unless the complaint shows an imminent danger of serious physical injury. The court found that DeBlasio’s complaint did not show that kind of danger.
Chief Judge Laura Taylor Swain denied DeBlasio’s request to proceed without paying the fee and dismissed the complaint without prejudice under the law’s three-strikes rule. The court also denied fee-free status for any appeal, certifying that an appeal would not be taken in good faith.
The detailed version
- DeBlasio v. The City of New York · No. 1:22-cv-07190
- Laura Swain
- Oct. 3, 2022
Background
Philip E. DeBlasio filed this action while incarcerated at the Fulton County Jail in Atlanta, Georgia. He was representing himself and asked to proceed without prepaying the filing fee. The defendants named in the caption were The City of New York, Muhammad Muhammad, identified as president of Masjid Madina, and Mr. Mahmood, identified as owner of Saharah East.
DeBlasio alleged that he was indicted and found guilty in 2018, and that the conviction was later reversed and dismissed on January 29, 2021. He asserted that he had therefore been unlawfully incarcerated for 35 months. The opinion does not further describe the claims or requested relief.
Legal standard and reasoning
The Prison Litigation Reform Act’s three-strikes provision, 28 U.S.C. § 1915(g), generally prevents a prisoner from filing a civil action without prepaying the filing fee if, on three or more prior occasions while incarcerated or detained, the prisoner brought an action or appeal that was 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.
The court relied on an earlier order that listed DeBlasio’s qualifying dismissals. It concluded that he was barred from filing this new action without prepaying the fee because his complaint did not show an imminent danger of serious physical injury. The court noted that the relevant danger must exist when the complaint is filed; the allegations concerning DeBlasio’s past conviction and incarceration did not establish that exception.
Disposition
Chief Judge Laura Taylor Swain denied DeBlasio’s request to proceed without prepaying the filing fee, and the complaint was dismissed without prejudice under the PLRA’s three-strikes rule. The court stated that DeBlasio could start a new action by paying the filing fees, subject to the required prisoner-complaint review. 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 an appeal. The Clerk of Court was directed to enter judgment.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.