Williams v. The Hon. Warrant Issuing Judge et al

Filing 2

-CLERK TO FOLLOW UP- ORDER directing the Clerk of Court to administratively terminate this action and granting plaintiff leave to move to re-open the case within 30 days of the date of this Order. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on February 19, 2016. (APG) (A copy of this Text Order and the attached Order have been sent to plaintiff by Chambers.)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
CHAD S. WILLIAMS,
16-CV-115V
ORDER

Plaintiff,
-vTHE HON. WARRANT ISSUING JUDGE,
name unknown, et al.,
Defendants.
___________________________________

Plaintiff Chad S. Williams, a prisoner confined at the Monroe County Jail,
submitted to this Court a pro se complaint asserting claims under 42 U.S.C. §§ 1981,
1983, and 1985. The plaintiff did not pay the filing fee or submit a motion requesting
permission to proceed in forma pauperis (that is, as someone who should have the
ordinary filing fee waived because he or she cannot afford to pay it).
As set forth below, the Clerk of Court is ordered to administratively terminate this
action. If the plaintiff wishes to re-open this case, he must notify this Court in writing
within 30 days of the date of this Order. The plaintiff’s notification must include either
(1) a properly supported motion to proceed in forma pauperis along with the required
certification of the plaintiff’s inmate trust fund account and authorization form, or (2) the
$350.00 filing fee and the $50.00 administrative fee ($400.00 total).

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DISCUSSION
A party commencing a civil action in this Court ordinarily must pay a $350 filing
fee as well as a $50.00 administrative fee. 1 See 28 U.S.C. § 1914; Judicial Conference
Schedule of Fees, District Court Miscellaneous Fee Schedule; 2 Western District of New
York, District Court Schedule of Fees. 3 If a “prisoner” (as defined in 28 U.S.C.
§ 1915(h)) wishes to commence a civil action, the prisoner must either (1) pay those
fees or (2) obtain permission to proceed in forma pauperis, pursuant to 28 U.S.C.
§ 1915.
The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321
(April 26, 1996), which amended 28 U.S.C. § 1915, established certain requirements
that a prisoner must meet in order to proceed in forma pauperis. Those requirements
are summarized below.
Requirement for a Supporting Affidavit
Under 28 U.S.C. § 1915(a)(1), a prisoner seeking to bring a civil action in forma
pauperis must submit an affidavit that details the prisoner’s assets and liabilities and
swears under oath that the prisoner is unable to pay the $350.00 filing fee. A motion to
proceed in forma pauperis should be supported by such an affidavit filed at the same

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Effective May 1, 2013, the Judicial Conference of the United States added an
administrative fee of $50.00 to the cost of filing a civil lawsuit in district court. See
September 2012 Report of the Proceedings of the Judicial Conference of the United
States, available at <http://www.uscourts.gov/about-federal-courts/reports-proceedingsjudicial-conference-us>. This additional administrative fee does not apply to prisoners
who are granted permission to proceed in forma pauperis. See generally id.

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Available at <http://www.uscourts.gov/services-forms/fees/district-court-miscellaneousfee-schedule>.
3

Available at <http://www.nywd.uscourts.gov/fee-schedule>.
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time as the complaint. The Court has made available a form motion to proceed in forma
pauperis with supporting affidavit 4 that is designed to help pro se litigants (such as the
plaintiff here) comply with 28 U.S.C. § 1915(a)(1).
Requirement for Certification of Inmate Trust Fund Account
Under 28 U.S.C. § 1915(a)(2), a prisoner seeking to proceed in forma pauperis
also must submit a certified copy of the prisoner’s inmate trust fund account statement
(or an institutional equivalent) for the six months immediately before the filing of the
prisoner’s complaint. A prisoner must obtain this certified account statement from the
appropriate official at each correctional facility where the prisoner was confined during
that six-month period. See 28 U.S.C. § 1915(a)(2). Alternatively, a prisoner may have
prison officials complete and sign the “Prison Certification Section” of the Court’s form
motion referred to above. See note 4, above. The “Prison Certification Section”
requires prison officials to provide the information in the prisoner’s trust fund account
statement, as required by 28 U.S.C. § 1915(a)(2).
Requirement for Authorization Form
A prisoner seeking to proceed in forma pauperis also is required to submit a
signed authorization form, 5 permitting the institution in which the prisoner is confined to
pay – over time, if necessary – the $350.00 filing fee from the prisoner’s trust fund
account (or institutional equivalent). See 28 U.S.C. § 1915(b)(1)-(4). In other words,

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The Court has ordered that a form motion to proceed in forma pauperis with
supporting affidavit be mailed to the plaintiff. The form also is available at
<http://www.nywd.uscourts.gov/pro-se-forms>.
5

The Court has ordered that an authorization form be mailed to the plaintiff. The form
also is available at <http://www.nywd.uscourts.gov/pro-se-forms>.
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even if the prisoner is granted in forma pauperis status, the prisoner must pay the full
$350.00 filing fee in installments. See 28 U.S.C. § 1915(b)(1)-(2). The initial payment
will be 20% of the average monthly deposits to the prisoner's account or 20% of the
average monthly balance in the prisoner’s account for the six-month period immediately
preceding the filing of the complaint, whichever is greater. See 28 U.S.C. § 1915(b)(1).
For each month after that, as long as the amount in the prisoner’s account exceeds
$10.00, the agency having custody of the prisoner will assess, deduct from the
prisoner’s account, and forward to the Clerk of Court an installment payment equal to
20% of the preceding month’s income that was credited to the prisoner’s account. See
28 U.S.C. § 1915(b)(2). Those payments continue until the $350 fee is paid in full. Id.
Administrative Termination of this Action
Here, the plaintiff did not pay the $350.00 filing fee or the $50.00 administrative
fee that ordinarily is required to commence a civil action. Nor did the plaintiff submit a
motion to proceed in forma pauperis, an affidavit swearing that he is unable to pay a
$350.00 filing fee, see 28 U.S.C. § 1915(a)(1), a certification of his inmate trust fund
account, see 28 U.S.C. § 1915(a)(1)-(2), or an authorization form. See 28 U.S.C.
§ (b)(1)-(4). Therefore, the Clerk of Court shall administratively terminate this action 6
without filing the complaint or assessing a filing fee, as ordered below. As also ordered

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Such an administrative termination is not a “dismissal” for purposes of the statute of
limitations. Therefore, if the case is re-opened pursuant to the terms of this Order, it is
not subject to the statute of limitations time bar if it had originally been timely filed. See
Houston v. Lack, 487 U.S. 266 (1988) (prisoner mailbox rule); McDowell v. Del. State
Police, 88 F.3d 188, 191 (3d Cir. 1996); see also Williams-Guice v. Bd. of Educ., 45
F.3d 161, 163 (7th Cir. 1995).
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below, the plaintiff is granted leave to move to re-open this action no later than thirty
days from the date of this Order.
Deferment of Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A
This Court is required to screen civil actions filed by prisoners and dismiss them
if they: (1) are frivolous or malicious; (2) fail to state a claim upon which relief may be
granted; or (3) seek monetary relief against a defendant who is immune from such
relief. See 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A; see also 42 U.S.C. § 1997e(c)
(dismissal of prisoner actions brought with respect to prison conditions). Because the
plaintiff did not properly commence this action, this Court will defer the mandatory
screening process until this case is re-opened – if it is in fact re-opened. If this action is
re-opened and then dismissed, installment payments of the filing fee pursuant to 28
U.S.C. § 1915 will not be suspended, and the prisoner will not be permitted to obtain a
refund of the filing fee or any part of it that already has been paid.
Additionally, if a prisoner has, on three or more prior occasions while
incarcerated, brought in federal court an action or appeal that was dismissed because it
was frivolous or malicious, or because it failed to state a claim upon which relief may be
granted, he or she cannot bring another action in forma pauperis unless he or she is
“under imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g).
ORDER
Based on the above,
IT IS HEREBY ORDERED that the Clerk of Court shall administratively terminate
this action, without filing the complaint or assessing a filing fee; and it is further

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ORDERED that the Clerk of Court is directed to send to the plaintiff a form
motion to proceed in forma pauperis with supporting affidavit and prisoner authorization
form; and it is further
ORDERED that if the plaintiff wishes to re-open this action, he shall so notify the
Court, in writing, no later than thirty days from the date of this Order. This writing
must include either (1) a properly supported motion to proceed in forma pauperis along
with the required certification of the plaintiff’s inmate trust fund account and
authorization form, or (2) the $350.00 filing fee and the $50.00 administrative fee
($400.00 total); and it is further
ORDERED that upon the plaintiff’s submission of either (1) a motion to proceed
in forma pauperis along with the required certification of the plaintiff’s inmate trust fund
account and authorization form, or (2) the $350.00 filing fee and the $50.00
administrative fee ($400.00 total), the Clerk of Court shall re-open this case.

SO ORDERED.

s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

DATED: February 19, 2016
Buffalo, NY

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