Burns v. Smith

Background

George Burns, who was incarcerated at Westchester County Jail, brought this action without a lawyer. He asked to proceed in forma pauperis (IFP), meaning without paying court fees in advance. The defendant is identified in the caption as Russell B. Smith, County Law, 18B Attorney.

Burns alleged that the defendant, who had been assigned to represent him, failed to protect his rights and “colluded with the assistant district attorney.”

Three-Strikes Rule

The court applied 28 U.S.C. § 1915(g), part of the Prison Litigation Reform Act. That provision generally prevents a prisoner from filing a civil action without paying fees if the prisoner has brought three or more earlier actions or appeals while incarcerated that were dismissed as frivolous, malicious, or for failing to state a claim. The exception applies when the prisoner is under imminent danger of serious physical injury.

The court stated that Burns had three qualifying prior dismissals. It also found that his complaint did not show an imminent danger of serious physical injury. The court explained that the danger must exist when the complaint is filed; a danger that had already ended would not qualify.

Ruling

The court denied Burns’s request to proceed IFP and dismissed the complaint without prejudice under the PLRA’s three-strikes rule. The opinion states that Burns may start a new action by paying the filing fees, and that any such complaint would be reviewed under the statutory screening process for prisoner civil-rights complaints.

The court further stated that Burns remains barred from filing future actions IFP while he is a prisoner unless he is under an imminent threat of serious physical injury. It certified under 28 U.S.C. § 1915(a)(3) that an appeal would not be taken in good faith and denied IFP status for an appeal. The clerk was directed to enter judgment.