Warren v. Hip-Hop Hall of Fame-NY
- Laura Swain
- 1:22-cv-07874
- U.S. District Court · Southern District of New York
- 6
In Warren v. Hip-Hop Hall of Fame, Judge Swain denied service without prejudice and ordered Warren to explain why his fee waiver should not be revoked.
Brian Andr’e Warren, an incarcerated plaintiff representing himself, must respond within 30 days to avoid the possible cancellation of his permission to proceed without paying the filing fee and possible dismissal without prejudice. The order also denied his request for U.S. Marshals Service of the complaint without prejudice.
What happened
Brian Andr’e Warren, who is incarcerated and representing himself, sued Hip-Hop Hall of Fame over alleged copyright or trademark infringement and unfair trade practices. He had received permission to proceed without paying the filing fee and asked the U.S. Marshals Service to serve the complaint.
The court found that Warren had accumulated three qualifying dismissals under the prisoner three-strikes rule and had not alleged an immediate risk of serious physical injury. The court therefore ordered him to submit a declaration within 30 days explaining why his permission to proceed without paying the filing fee should not be canceled.
Judge Laura Taylor Swain denied Warren’s service motion without prejudice. If Warren does not respond or does not show cause, the court said it will cancel that permission, dismiss the action without prejudice, and recognize that he cannot proceed without paying fees in future federal civil actions while incarcerated.
The detailed version
- Warren v. Hip-Hop Hall of Fame-NY · No. 1:22-cv-07874
- Laura Swain
- Nov. 14, 2022
Background
Brian Andr’e Warren, an incarcerated plaintiff proceeding without a lawyer, filed claims against HIP-HOP HALL OF FAME concerning alleged copyright or trademark infringement and unfair trade practices arising from his claimed artistic expression, “Hip Hop Hall of Fame.” The court had previously granted Warren permission to proceed without paying the filing fee. Warren then moved for service of the complaint by the U.S. Marshals Service.
Three-strikes issue
The Prison Litigation Reform Act’s three-strikes provision, 28 U.S.C. § 1915(g), generally bars an incarcerated person from proceeding without paying the filing fee after three or more prior federal actions or appeals were dismissed as frivolous, malicious, or for failing to state a claim. An exception applies when the person is under imminent danger of serious physical injury.
The court found that Warren had accumulated three strikes based on prior federal cases. It also found that Warren had not alleged facts suggesting that he was in imminent danger of serious physical injury. His allegations instead concerned copyright or trademark infringement and unfair trade practices.
Notice and opportunity to respond
Because a person representing himself generally must receive notice and an opportunity to respond before an unfavorable final decision, the court gave Warren 30 days to submit a declaration showing that he had not filed three or more qualifying cases while incarcerated. The order included a declaration form.
Ruling and possible consequences
The court denied Warren’s motion for service without prejudice and directed the Clerk of Court to terminate the motion’s deadline. The court did not yet cancel Warren’s permission to proceed without paying the filing fee or dismiss the action. It stated that, if Warren failed to respond or failed to show cause, it would cancel that permission, dismiss the action without prejudice, and recognize that Warren was barred from proceeding without paying filing fees in future federal civil actions while incarcerated.
The court also certified that any appeal from the order would not be taken in good faith and denied permission to proceed without paying appellate fees. Judge Laura Taylor Swain signed the order.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.