887 F.3d 91
2d Cir.2018Background
- Plaintiff Hugues-Denver Akassy, a New York state prisoner convicted in 2011, filed three civil actions in 2017 seeking to proceed in forma pauperis (IFP) against former attorneys and others; each was transferred to and dismissed by the SDNY under 28 U.S.C. § 1915(g).
- The district court denied IFP status, dismissed the complaints without prejudice to refiling with payment of fees, and barred future IFP filings while imprisoned unless the prisoner is under imminent danger of serious physical injury.
- Akassy previously filed multiple suits in 2014 against media organizations; four were dismissed in 2015 as time-barred under New York’s one-year statute of limitations, and his appeals from those dismissals were itself dismissed as lacking an arguable basis.
- Akassy argued (a) the 2015 statute-of-limitations dismissals should not count as strikes under § 1915(g), (b) the four consolidated 2015 appeals should count as only one strike, (c) he faced imminent danger justifying the statutory exception, and (d) § 1915(g) or the district court procedures were unconstitutional or unfair.
- The Second Circuit consolidated Akassy’s three appeals of the 2017 dismissals, denied his motions to proceed IFP, held he had accrued more than three strikes, found he did not satisfy the imminent-danger exception, and dismissed the appeals as lacking any arguable basis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissals as time-barred count as strikes under § 1915(g) | The 2015 statute-of-limitations dismissals should not be strikes because his claims were stated with supporting exhibits | Dismissals based on the complaint’s allegations showing timeliness defects are failures to state a claim and thus qualify as strikes | Time-barred dismissals based on the complaint are strikes under § 1915(g) |
| Whether multiple appeals decided in one order count as multiple strikes | The four consolidated 2015 appeals should count only as one strike because they were disposed of in a single order | Separate appeals remain separate "occasions" even if consolidated for a particular order | Each dismissed appeal constitutes a separate strike; consolidation does not merge them |
| Whether Akassy met the § 1915(g) imminent-danger exception | He alleged past assaults and ongoing threats tied to his criminal case/legal malpractice, claiming imminent danger | The imminent-danger exception requires current danger at the time of filing and a nexus to the claims pleaded | Allegations did not show imminent danger at filing nor adequate nexus to the asserted claims; exception not met |
| Constitutional challenge to § 1915(g) and request to hold cases in abeyance | § 1915(g) violates access-to-courts or is overbroad; district court should have held cases until fees paid | Right to IFP is statutory, § 1915(g) is constitutional as applied; district court properly dismissed and allowed fee-paid refiling | Rejected; § 1915(g) is constitutional and dismissal without abeyance was not an abuse of discretion |
Key Cases Cited
- Pettus v. Morgenthau, 554 F.3d 293 (2d Cir. 2009) (explains the PLRA three-strikes rule and imminent-danger exception)
- Jones v. Bock, 549 U.S. 199 (U.S. 2007) (a complaint showing claims barred by the statute of limitations may be dismissed for failure to state a claim)
- Neitzke v. Williams, 490 U.S. 319 (U.S. 1989) (frivolousness defined as lack of an arguable basis in law or fact)
- Malik v. McGinnis, 293 F.3d 559 (2d Cir. 2002) (imminent-danger exception requires danger at the time the complaint is filed)
- Polanco v. Hopkins, 510 F.3d 152 (2d Cir. 2007) (right to proceed IFP is statutory; § 1915(g) does not violate access-to-courts)