Gibson v. Various members from the Office of Mental Health

Background

Bennie Gibson brought this action while detained in the Anna M. Kross Center on Rikers Island. He represented himself and did not submit the $402 filing fee, so the court understood him to be asking to proceed without paying the fee in advance.

The opinion states that Gibson was barred by the Prison Litigation Reform Act’s “three-strikes” rule, 28 U.S.C. § 1915(g). That rule generally prevents a prisoner from bringing a civil action without prepaying the filing fee after three or more earlier actions or appeals were dismissed as frivolous, malicious, or for failing to state a claim, unless the prisoner is in immediate danger of serious physical injury. The court cited an earlier related proceeding that listed seven dismissals qualifying as strikes.

Court’s analysis

The court said Gibson’s complaint did not show that he was in immediate danger of serious physical injury when he filed it. Instead, the opinion says he sued numerous judges, prosecutors, and private individuals about events occurring before his arrest and incarceration.

The court also stated that Gibson was barred under 28 U.S.C. § 1651 from filing a new action without paying the filing fee unless he first obtained permission from the court. Although Gibson appeared to seek that permission, the court concluded that this action was not a departure from what it described as his pattern of frivolous and non-meritorious litigation. The court therefore stated that it would dismiss the complaint under that bar as well, even if the three-strikes rule did not apply.

Ruling and effect

Judge Laura Taylor Swain denied Gibson’s request to proceed without prepaying the filing fee and dismissed the complaint without prejudice under the Prison Litigation Reform Act’s three-strikes rule. The court directed the clerk to enter judgment. It said Gibson could begin a new action by paying the filing fees, after which the complaint would be reviewed under the prisoner-screening statute, 28 U.S.C. § 1915A.

The court also certified that an appeal would not be taken in good faith and denied payment-free status for purposes of an appeal. The opinion states that Gibson remains barred from filing future actions without prepaying fees while he is in custody unless he faces an immediate threat of serious physical injury.