Rickenbacker v. John Doe No. 1 et al

Filing 3

ORDER case shall be administratively terminated; plaintiff shall notify the Court in writing no later 30 days from the date of this order if he wishes to reopen the action and shall include either a new motion to proceed in forma pauperis that includes a completed and signed Prison Certification and Authorization or the $350.00 filing fee and $52.00 administrative fee; upon receipt of the new motion or the filing fee, the Clerk of Court shall re-open the case. Signed by Hon. Lawrence J. Vilardo on 6/3/21. (SG)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

KENNETH RICKENBACKER,
Plaintiff,
v.

21-CV-672-LJV
ORDER

JOHN DOE NO. 1, et al.,
Defendants.

The pro se plaintiff, Kenneth Rickenbacker, is a prisoner confined at the Five
Points Correctional Facility. He filed a complaint asserting claims under 42 U.S.C.
§ 1983, Docket Item 1, but did not pay the filing fee or submit a complete application to
proceed in forma pauperis (that is, as someone who should have the prepayment of the
ordinary filing fee waived because he cannot afford it), see Docket Item 2.
The Clerk of the Court therefore shall administratively terminate this action. If
Rickenbacker wishes to reopen this case, he must notify the Court in writing within 30
days of the date of this order and must include either (a) the required certification of
his inmate trust fund account (or institutional equivalent) and authorization form or (b)
the $350.00 filing fee and the $52.00 administrative fee ($402.00 total).
DISCUSSION
A party commencing a civil action in this Court ordinarily must pay a $350.00
filing fee as well as a $52.00 administrative fee.1 See 28 U.S.C. § 1914; Judicial

1

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

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 under 28 U.S.C.
§ 1915.
I.

REQUIREMENTS FOR IN FORMA PAUPERIS APPLICATION
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.
A.

Supporting Affidavit or Affirmation

Under 28 U.S.C. § 1915(a)(1), a prisoner seeking to bring a civil action in forma
pauperis must submit an affidavit or affirmation detailing the prisoner’s assets and
liabilities and swearing 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 or

September 2012 Report of the Proceedings of the Judicial Conference of the United
States (“September 2012 Report”), available at http://www.uscourts.gov/about-federalcourts/reports-proceedings-judicial-conference-us. Effective December 1, 2020, this fee
was increased to $52.00. See https://www.uscourts.gov/services-forms/fees/districtcourt-miscellaneous-fee-schedule. But this additional administrative fee does not apply
to prisoners who are granted permission to proceed in forma pauperis. See generally
September 2012 Report.
2

Available at http://www.uscourts.gov/services-forms/fees/district-courtmiscellaneous-fee-schedule.
3

Available at http://www.nywd.uscourts.gov/fee-schedule.
2

affirmation filed at the same time as the complaint. The United States District Court for
the Western District of New York has made available a form motion to proceed in forma
pauperis with supporting affirmation4 that is designed to help pro se litigants (such as
Rickenbacker here) comply with 28 U.S.C. § 1915(a)(1). Rickenbacker submitted the
required affirmation.
B.

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 his or her inmate trust fund account statement (or
an institutional equivalent) for the six months immediately before the prisoner’s
complaint was filed. The 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, the prisoner may
have prison officials complete and sign the “Prison Certification Section” of the Court's
form motion referred to above. See supra note 4. In the “Prison Certification Section,”
prison officials provide the information in the prisoner’s trust fund account statement
required by 28 U.S.C. § 1915(a)(2). Rickenbacker did not submit the required
certification.

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The Clerk of the Court shall mail Rickenbacker a form motion to proceed in
forma pauperis. The form also is available at http://www.nywd.uscourts.gov/pro-seforms.
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C.

Authorization Form

A prisoner seeking to proceed in forma pauperis also must submit a signed
authorization form5 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, even if the
prisoner is granted in forma pauperis status, the prisoner still 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 deduct from the prisoner’s
account and forward to the Clerk of the 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 $350.00 fee is paid in full.
Id.
II.

Rickenbacker did not submit the required authorization.
ADMINISTRATIVE TERMINATION OF THIS ACTION
Rickenbacker did not pay the $350.00 filing fee or the $52.00 administrative fee

that ordinarily is required to commence a civil action. He submitted a motion to proceed
in forma pauperis and an affidavit swearing that he is unable to pay a $350.00 filing fee,
see 28 U.S.C. § 1915(a)(1), but he did not submit a certification of his inmate trust fund

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The Clerk of the Court shall mail Rickenbacker an authorization form. The form
also is available at http://www.nywd.uscourts.gov/pro-se-forms.
4

account, see 28 U.S.C. § 1915(a)(1)-(2), or an authorization form, see 28 U.S.C.
§ 1915(b). Therefore, the Clerk of the Court shall administratively terminate this action6
without filing the complaint or assessing a filing fee, as ordered below. As also ordered
below, Rickenbacker is granted leave to reopen this action no later than thirty days from
the date of this order.
III.

DEFERMENT OF SCREENING UNDER 28 UNITED STATES CODE
SECTIONS 1915(E)(2) & 1915A
The 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 reopened—if, in fact, it is reopened. If this action is
reopened and then dismissed, installment payments of the filing fee under 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

Such an administrative termination is not a “dismissal” for purposes of the
statute of limitations. Therefore, if the case is reopened under the terms of this order, it
is not subject to the statute of limitations time bar as long as it originally was 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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was frivolous or malicious or because it failed to state a claim upon which relief may be
granted, he or she will not be permitted to 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 the Court shall administratively terminate this action
without filing the complaint or assessing a filing fee; and it is further
ORDERED that the Clerk of the Court shall send Rickenbacker a form motion to
proceed in forma pauperis and authorization form; and it is further
ORDERED that if Rickenbacker wishes to reopen this action, he shall so notify
this Court, in writing, no later than 30 days from the date of this order. This writing
must include either (a) the required certification of his inmate trust fund account (or
institutional equivalent) and authorization form or (b) the $350.00 filing fee and the
$52.00 administrative fee ($402.00 total); and it is further
ORDERED that upon Rickenbacker’s submission of either (a) the required
certification of his inmate trust fund account (or institutional equivalent) and
authorization form or (b) the $350.00 filing fee and the $52.00 administrative fee
($402.00 total), the Clerk of the Court shall reopen this case.

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SO ORDERED.
Dated:

June 3, 2021
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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