# Burns v. Schell

> District Court, S.D. New York · September 4, 2020

URL: https://www.frixlaw.com/law-library/cases/10325569

## Case

- **Court:** District Court, S.D. New York
- **Decided:** September 4, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
GEORGE BURNS,
Plaintiff,
20-CV-5582 (LLS)

-against-
ORDER TO SHOW CAUSE UNDER
28 U.S.C. § 1915(g)
AMY SCHELL, LMSW,
Defendant.
LOUIS L. STANTON, United States District Judge:
Plaintiff, while incarcerated in the Anna M. Kross Center on Rikers Island, filed this
action pro se and seeks in forma pauperis (IFP) status. The Court directs Plaintiff to show cause
why the Court should not deny his IFP application under 28 U.S.C. § 1915(g), the Prison
Litigation Reform Act’s three-strikes provision.
PRISON LITIGATION REFORM ACT
The Prison Litigation Reform Act (PLRA) added the following three-strikes provision to
the IFP statute:
In no event shall a prisoner bring a civil action…under this section if the prisoner
has, on 3 or more prior occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that was dismissed on
the grounds that it is frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under imminent danger of serious
physical injury.
28 U.S.C. § 1915(g). Consequently, a prisoner who has filed at least three civil actions or appeals
meeting these criteria is ineligible to proceed IFP and must pay the filing fees before the Court
can entertain a new civil action unless the prisoner qualifies for the “imminent danger”
exception.
The Court has identified three civil actions filed by Plaintiff as strikes under § 1915(g);
each of these actions was dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a
claim on which relief may be granted: Burns v. Dep’t of Health & Human Servs., ECF 1:19-CV-
2246, 6 (S.D.N.Y. Oct. 4, 2019) (mandamus petition dismissed for failure to state a claim);1
Burns v. Foodtown Express of Yonkers LLC, ECF 1:18-CV-9802, 7 (S.D.N.Y. Dec. 27, 2018)
(mandamus petition dismissed for failure to state a claim); and Burns v. City of Yonkers, ECF
1:15-CV-3036, 6 (S.D.N.Y. Oct. 2, 2015) (dismissed for failure to state a claim).2 The Court

finds that Plaintiff has accumulated three strikes under the PLRA and he is therefore barred under

1 The Second Circuit has held that the PLRA applies to writs that “seek relief analogous
to civil complaints under 42 U.S.C. § 1983, but not to writs directed at judges conducting
criminal trials.” In re Nagy, 89 F.3d 115, 116 (2d Cir. 1996). Thus, a petition for writ of
mandamus is a “civil action” within the meaning of § 1915(g) and may be counted toward the
three strikes where the prisoner’s mandamus claims are indistinguishable from those typically
alleged in a civil rights action. See id. at 117; see also In re Kissi, 652 F.3d 39, 41-42 (D.C. Cir.
2011); In re Tyler, 110 F.3d 528, 529 (8th Cir. 1997); Martin v. Grimshaw, 198 F.3d 248 (Table)
(6th Cir. 1999); Green v. Nottingham, 90 F.3d 415, 417-18 (10th Cir.1996). Because Plaintiff
sought relief analogous to claims under § 1983 in his mandamus petitions in ECF 1:19-CV-2246,
6, and ECF 1:18-CV-9802, 7, the dismissals of those two actions are considered strikes within
the meaning of § 1915(g).
2 Plaintiff has also filed multiple other cases in this Court. See Burns v. Westchester Cty.
Dep’t of Social Servs., ECF 1:20-CV-6649, 2 (S.D.N.Y. filed Aug. 20, 2020) (pending civil action
under § 1983); Burns v. Orange Cty. Supreme Ct., ECF 1:19-CV-2247, 4 (S.D.N.Y. Apr. 29,
2019) (petition for a writ of habeas corpus construed as § 1983 action; dismissed for failure to
state a claim and on immunity grounds); Burns v. State of NY, ECF 1:18-CV-9561, 4 (S.D.N.Y.
Oct. 30, 2018) (petition for a writ of error coram nobis denied); Burns v. City of Yonkers, ECF
1:18-CV-9224, 4 (S.D.N.Y. Aug. 2, 2019) (habeas corpus action dismissed without prejudice for
failure to pay the filing fee); Burns v. Warden, Westchester Cty. Jail, ECF 1:18-CV-6792,11
(S.D.N.Y. Feb. 1, 2019) (petition for a writ of habeas corpus denied); Burns v. City of Yonkers,
ECF 1:18-CV-4313, 4 (S.D.N.Y. June 20, 2018) (nonprisoner § 1983 action dismissed for failure
to state a claim); Burns v. Cty. Of Westchester Dep’t of Corr., ECF 7:15-CV-2463, 14 (S.D.N.Y.
July 21, 2016) (§ 1983 action dismissed without prejudice for lack of prosecution); Burns v.
Westchester Cty. Dep’t of Social Servs., ECF 1:14-CV-7203, 3 (S.D.N.Y. Nov. 17, 2014)
(nonprisoner § 1983 action dismissed without prejudice for failure to pay filing fees or submit
IFP application); Burns v. SSA, ECF 1:14-CV-7202, 18 (S.D.N.Y. June 7, 2016) (nonprisoner
social security benefits action dismissed for lack of prosecution and mootness); Burns v. Warden
Westchester Cty. Jail, ECF 1:11-CV-0141, 4 (S.D.N.Y. Mar. 3, 2011) (petition for a writ of
habeas corpus denied); Burns v. Westchester Cty. Dep’t of Corr., ECF 1:10-CV-0185, 10
(S.D.N.Y. Sept. 28, 2011) (§ 1983 action dismissed for lack of prosecution); Burns v. City of
Yonkers, ECF 7:10-CV-0163, 8 (S.D.N.Y. May 6, 2011) (§ 1983 action dismissed without
prejudice for lack of prosecution); Burns v. Amicucci, No. 09-CV-10345 (LAP) (S.D.N.Y. Dec.
21, 2009) (petition for a writ of habeas corpus denied).
28 U.S.C. § 1915(g) from filing any actions IFP. Because Plaintiff is barred under § 1915(g)
from proceeding IFP unless he is “under imminent danger of serious physical injury,” he must
pay the filing fee for this action.
Plaintiff does not allege any facts suggesting that he was in imminent danger of serious
physical injury when he filed this case.3 Instead, he brings this action asserting that between June

2018 and May 2019, while he was detained in the Westchester County Jail pursuant to a criminal
matter, Defendant interfered with his criminal case and “orchestrated” his involuntary admission
to a hospital in retaliation for his filing of grievances against her. (ECF No. 2, at 8.)
NOTICE AND OPPORTUNITY TO BE HEARD
A pro se litigant is generally entitled to notice and an opportunity to be heard before the
Court issues a final decision that is unfavorable to the litigant. See Snider v. Melindez, 199 F.3d
108, 113 (2d Cir. 1999) (requirement of notice and opportunity to be heard “plays an important
role in establishing the fairness and reliability” of the dismissal order, “avoids the risk that the
court may overlook valid answers to its perception of defects in the plaintiff’s case,” and
prevents unnecessary appeals and remands). The Court therefore grants Plaintiff leave to submit

a declaration showing that, while a prisoner, he has not filed three or more cases that were
dismissed as frivolous, malicious, or for failure to state a claim. Plaintiff must submit this
declaration within thirty days. If Plaintiff does not make this showing, or if he fails to respond to
this order, the Court will deny Plaintiff’s IFP application, dismiss the action without prejudice,
and bar Plaintiff from filing future actions IFP while he is a prisoner.4

3 An imminent danger is not one “that has dissipated by the time a complaint is filed,”
Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009); rather, it must be one “existing at the
time the complaint is filed,” Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002).
4 Plaintiff is not barred from filing a new case by prepaying the filing fee.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on
the docket. The Court directs Plaintiff to show cause why the Court should not deny his IFP
application under the PLRA’s three strikes provision, 28 U.S.C. § 1915(g). Plaintiff must file a
declaration within thirty days explaining any reason why he should not be barred under the
PLRA. A declaration form is attached to this order for Plaintiff’s convenience. If Plaintiff does
not show cause, or if he fails to respond to this order, the Court will deny Plaintiff’s IFP
application, dismiss this action without prejudice, and bar Plaintiff under § 1915(g) from filing
future actions IFP while he is a prisoner. All other pending matters are terminated.
SO ORDERED.
Dated: September 4, 2020
New York, New York

US.D.J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10325569. Public record. Not legal advice.