Cano v. City of New York

Background

Christopher Hiram Cano, who was incarcerated and represented himself, brought this action against the City of New York and named and unnamed New York Department of Corrections employees. The court had granted Cano permission to proceed without paying the full filing fee upfront, commonly called proceeding in forma pauperis, or IFP.

Defendants moved to revoke that status under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g). The PLRA’s “three-strikes” rule generally prevents a prisoner from proceeding IFP after three earlier federal actions or appeals were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner faces imminent danger of serious physical injury.

Defendants initially identified four earlier dismissals as strikes. In their reply, they conceded that the dismissal in the earlier proceeding identified by docket number 18-cv-4176 in the Eastern District of New York did not count, but continued to argue that three other dismissals counted.

Court’s Analysis

The court determined that at least two of the four dismissals were not strikes.

First, the earlier action ending in docket number 18-cv-4176 was voluntarily dismissed after Cano said that incarceration prevented continued prosecution. Because it was not dismissed as frivolous, malicious, or for failure to state a claim, it did not count as a PLRA strike.

Second, in the earlier related proceeding identified by docket number 23-cv-3807 in the Southern District of New York, the federal claims were dismissed for failure to state a claim, but the court declined to exercise supplemental jurisdiction over the state-law claims. Those state-law claims were expressly dismissed without prejudice, meaning they could be pursued again in state court. Relying on Second Circuit precedent, Judge Subramanian held that a dismissal does not count as a strike unless the entire action was dismissed on qualifying PLRA grounds.

The court rejected Defendants’ argument that the state-law claims should count because they were allegedly untimely and could have been dismissed as frivolous. Section 1915(g), the court explained, requires that the action actually have been dismissed on qualifying grounds; it does not make a strike accrue merely because claims might have been dismissed on those grounds.

Ruling

Judge Arun Subramanian held that Cano was not prohibited from proceeding IFP because Defendants had identified four earlier dismissals, at least two of which were not PLRA strikes. The court denied Defendants’ motion and directed the Clerk of Court to terminate the motion at ECF No. 11.