Gamble v. Peerzada
- Laura Swain
- 1:23-cv-04598
- U.S. District Court · Southern District of New York
- 6
In Gamble v. Peerzada, Judge Swain ordered Kevin Gamble to explain within 30 days why his fee-waiver request should not be denied under the three-strikes rule.
Kevin Gamble, a prisoner representing himself, whose request to proceed without prepaying the filing fee was challenged under the Prison Litigation Reform Act’s three-strikes rule. The order also describes the effect on any future cases he might file without prepaying fees while incarcerated.
What happened
In Gamble v. Peerzada, Kevin Gamble, a prisoner representing himself, asked to proceed without paying the filing fee. The court found that he had three qualifying prior dismissals under the Prison Litigation Reform Act’s three-strikes rule.
The court also found that Gamble’s allegations about a search and arrest on February 16, 2022, did not show that he faced an immediate danger of serious physical injury when he filed this case. That danger is an exception to the three-strikes rule. Because the court had to give him notice and an opportunity to respond before making a final unfavorable decision, it ordered him to submit a declaration within 30 days explaining why the rule should not apply.
Judge Swain did not yet deny Gamble’s fee-waiver request or dismiss the case. The order states that if Gamble does not respond or does not show cause, the court will deny the request, dismiss the case without prejudice, and find that he cannot proceed without paying filing fees in future cases while incarcerated. The court also denied fee-waiver status for any appeal from this order.
The detailed version
- Gamble v. Peerzada · No. 1:23-cv-04598
- Laura Swain
- June 5, 2023
Background
Kevin Gamble, who was incarcerated at the George R. Vierno Center, filed this action without a lawyer and requested permission to proceed without prepaying the filing fee. He alleged that police officers wrongfully searched his apartment and arrested him on February 16, 2022.
Three-strikes finding
The Prison Litigation Reform Act generally prevents a prisoner from proceeding without prepaying the filing fee when the prisoner has had three or more prior federal cases or appeals dismissed as frivolous, malicious, or for failing to state a claim. An exception applies if the prisoner was in immediate danger of serious physical injury when the new case was filed.
The court found that Gamble had accumulated three qualifying strikes. The opinion notes that an earlier court had questioned whether some dismissals should count, but that court identified three other dismissals that did count. The court also found that Gamble’s complaint did not allege facts showing an immediate danger of serious physical injury. His allegations concerned events that occurred more than one year before he filed this case.
Order to show cause
Because a person representing himself generally must receive notice and an opportunity to respond before an unfavorable final decision, the court granted Gamble leave to submit a declaration. The declaration must explain why the court should not find that he had three qualifying strikes while incarcerated. He had 30 days to respond.
Disposition
The court directed Gamble to show cause why his request to proceed without prepaying the filing fee should not be denied under 28 U.S.C. § 1915(g). This order did not itself deny that request or dismiss the action. It states that if Gamble failed to respond or failed to show cause, the court would deny the request, dismiss the action without prejudice, and find that he was barred from proceeding without prepaying filing fees in future actions while incarcerated. The court also certified that an appeal would not be taken in good faith and denied fee-waiver status for purposes of an appeal from this order. Gamble would not be barred from filing a new case if he prepaid the filing fee.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.