Cannon v. New York State Department of Corrections and Community Supervision

Background

Joseph Sherod Cannon, a prisoner at Great Meadow Correctional Facility, filed this action without a lawyer and requested permission to proceed without paying the filing fee. Because he is a prisoner seeking that status, the court reviewed whether the Prison Litigation Reform Act’s “three strikes” provision, 28 U.S.C. § 1915(g), barred him from proceeding without paying.

Under that provision, a prisoner generally may not proceed without paying the filing fee after bringing three earlier federal actions or appeals that were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner faced an imminent danger of serious physical injury.

Prior cases

The court reconsidered the earlier cases that had been treated as strikes in an earlier related proceeding. It determined that the dismissal in Cannon’s case involving The Daily News was a “mixed dismissal” because some claims were dismissed for failure to state a claim while another claim was dismissed on a different ground. Under Second Circuit precedent, a mixed dismissal does not count as a strike.

The court also determined that the initial dismissal in Cannon’s case involving the New York City Department of Correction had later been vacated and the case reopened. The case was eventually dismissed on multiple grounds, including grounds that did not qualify as strikes, so that dismissal also did not count as a strike.

The court discussed Cannon’s case transferred to the District of Massachusetts. That case had been dismissed for multiple reasons, including immunity and failure-to-state-a-claim grounds. The court stated that it might be a mixed dismissal and therefore might not qualify as a strike. Even if it did qualify, Cannon would have no more than two strikes.

The court found that Cannon’s separate case docketed as 16-CV-4282 did qualify as one strike. That action had been dismissed in its entirety for failure to state a claim. The court also explained that other matters—including settled or transferred cases, habeas petitions, voluntary dismissals, dismissals for duplicative litigation, and dismissals for failure to prosecute—did not qualify as strikes under Section 1915(g).

Ruling

The court held that, when Cannon filed this action, he had not brought three prior prisoner actions dismissed on qualifying grounds. It therefore found that Section 1915(g) did not disqualify him from proceeding without paying the filing fee. Judge Laura Taylor Swain stated that the court would grant Cannon’s request to proceed without paying the filing fee by separate order.

Disposition

The court granted Cannon’s request to proceed without paying the filing fee. The opinion addressed only that filing-fee issue and did not decide the underlying claims in this action.