Judge Charles Siragusa

Inmate Nealy’s three federal suits asserting civil rights and Eighth Amendment rights violations by New York’s Department of Correctional Services were dismissed for failing to state a claim on which relief could be granted, or as time barred. Finding Nealy violated the Prisoner Litigation Reform Act’s “three strikes” provision, district court revoked his in forma pauperis status under §1915(g) and (e)(2). While observing that the issue of whether a prior dismissed lawsuit is a “strike” is a question of law for a court to determine, district court noted that two of Nealy’s suits counted as “strikes” because they were dismissed for failure to state a claim. The third suit was dismissed because the statute of limitations expired. When a case is so dismissed, for §1915(g) purposes, it is considered to be dismissed for failure to state a claim for which relief may be granted. In finding that §1915(g)’s “imminent danger” exception did not apply, the court noted that Nealy’s complaint did not allege that he was in imminent danger of serious physical injury, nor, on the facts asserted in his complaint, could he make such an allegation.