Pinkard v. Crowley et al
Filing
4
ORDER denying without prejudice 2 MOTION for Leave to Proceed in forma pauperis filed by Alvin R. Pinkard and administratively closing this case with leave to reopen no later than 30 days from date of entry of this Order. Signed by Hon. Michael A. Telesca on 3/23/2018. This docket entry does not contain all of the information in the Order. Plaintiff is directed to refer to the Order for complete details and instructions.(AFB)-CLERK TO FOLLOW UP- The Clerk of Court is directed to administratively terminate this action, without filing the Complaint or assessing a filing fee; and the Clerk of Court is also directed to send a prisoner authorization form to Plaintiff along with this Order.
PS
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
ALVIN R. PINKARD,
Plaintiff,
-v-
1:18-CV-6122T
ORDER
OFFICER CROWLEY (New York Police),
OFFICER MERRITT (New York State
Police), OFFICER MCCADDEN (New
York State Police) and JOSEPH
DEMELIO, ESQ.,
Defendants.
___________________________________
INTRODUCTION
Alvin R. Pinkard (“Plaintiff”), a prisoner confined at the Wayne County Jail,
submitted to this Court a pro se complaint (Docket Item 1) asserting claims under 42
U.S.C. § 1983. Plaintiff did not pay the filing fee, but he did submit an application to
proceed in forma pauperis (that is, as someone who should have the prepayment of the
ordinary filing fee waived because he or she cannot afford it), along with a certification of
his inmate trust fund account. (See Docket Item 2). That application, however, did not
include an authorization form permitting the Court to withdraw funds from Plaintiff’s
account.
As set forth below, the Clerk of Court is directed to administratively terminate this
action. If Plaintiff wishes to reopen this case, he must notify this Court in writing within
30 days of the date of this Order and must include either (1) the required 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 $350.00 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.
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. The Court summarizes these
requirements 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 containing a statement swearing under oath that he or she is unable to pay
the $350.00 filing fee. The prisoner should file this motion to proceed in forma pauperis,
along with the supporting affidavit or affirmation, at the same time as he or she files the
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 September 2012 Report of the Proceedings of the
Judicial Conference of the United States, available at . However, this additional administrative fee does not
apply to prisoners who granted permission to proceed in forma pauperis. See generally id.
2
Available at .
3
Available at .
2
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 comply with 28 U.S.C. § 1915(a)(1). Here, Plaintiff
utilized the Court’s form motion and supporting affirmation. (See Docket Item 2).
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 the prisoner’s inmate trust fund account statement
(or an institutional equivalent) for the six (6) 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 in note 4, supra. 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). Plaintiff’s application complied with this requirement. (See Docket
Item 2).
C. 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
4
The form is available at http://www.nywd.uscourts.gov/pro-se-forms.
5
The form is available at http://www.nywd.uscourts.gov/pro-se-forms. The Court also has directed the
Clerk of Court to mail an authorization form to Plaintiff along with this order.
3
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 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 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 has been paid in full. Id.
In this case, Plaintiff did not submit an authorization form, so his application to
proceed in forma pauperis failed to comply with this requirement.
II. ADMINISTRATIVE TERMINATION OF THIS ACTION
Here, 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 Plaintiff submit an
authorization form, see 28 U.S.C. § 1915 (b)(1)-(4), along with his motion to proceed in
forma pauperis. Therefore, the Clerk of Court shall administratively terminate this action6
without filing the Complaint or assessing a filing fee, as ordered below. In addition,
6
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).
4
Plaintiff is granted leave to reopen this action no later than thirty (30) days from the date
of this Order.
III. DEFERMENT OF SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) &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 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. Plaintiff is cautioned that if this
action is reopened and then dismissed, installment payments of the filing fee pursuant to
28 U.S.C. § 1915 will not be suspended, and Plaintiff will not be permitted to obtain a
refund of the filing fee or any part of it that already has been paid.
Plaintiff is further cautioned regarding the “three strikes” rule: If a prisoner has, on
three (3) or more prior occasions while incarcerated, filed a federal court action or appeal
that was dismissed as 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
Accordingly, it is hereby
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ORDERED that Plaintiff’s application to proceed in forma pauperis is denied
without prejudice; and it is further
ORDERED that the Clerk of Court shall administratively terminate this action,
without filing the Complaint or assessing a filing fee; and it is further
ORDERED that the Clerk of Court is directed to send a prisoner authorization form
to Plaintiff; and it is further
ORDERED that if Plaintiff wishes to reopen this action, he shall so notify the Court,
in writing, no later than thirty (30) days from the date of this Order. This writing must
include either (1) an 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 Plaintiff’s timely submission of either (1) the authorization
form, or (2) the $350.00 filing fee and the $50.00 administrative fee ($400.00 total), the
Clerk of Court shall reopen this case.
SO ORDERED.
s/ Michael A. Telesca
_____________________________________
Michael A. Telesca
United States District Judge
DATED:
March 23, 2018
Rochester, NY
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