Ramos v. Lundin et al

Filing 16

ORDER denying 15 Motion. Signed by Hon. Frank P. Geraci, Jr. on 9/15/2020. This NEF and Order were mailed to pro se Plaintiff. (BJJ)

PS

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
GREGORY RAMOS,
Plaintiff,
-v-

18-CV-6210G
ORDER

Detective Sergeant CARL LUNDIN, et al.,
Defendants.
___________________________________
Before the Court is pro se Plaintiff Gregory Ramos’ Motion for Return of Filing Fee. ECF
No. 15. In March of 2018, Plaintiff filed this action seeking relief under 28 U.S.C. § 1983. ECF
No. 1 (“Complaint”). However, he failed to pay the fee or move to proceed in forma pauperis
(“IFP”), and the action was administratively closed without assessing the filing fee. ECF No. 2.
Subsequently, the Court received Plaintiff’s Motion to proceed IFP. ECF No. 5. This included
Plaintiff’s Authorization to deduct the filing fee from his prison account, in which he expressly
acknowledged that the fee would be assessed even if the action were dismissed. Id. at 3.

By

Order dated April 26, 2018, the Court granted Plaintiff’s Motion to proceed IFP and conducted
initial review of the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a). ECF No.
6. The Court dismissed the Complaint for failure to state a claim on which relief may be granted,
but granted leave to amend. Id.
Upon receipt of this Court’s Order dismissing with leave to amend, Plaintiff wrote to court
staff indicating that he felt that the earlier, administrative closure order was dispositive and that
the more recent order (ECF No. 6) was therefore a mistake. ECF No. 11. Plaintiff did not amend
as permitted, and on February 12, 2019, the action was dismissed with prejudice. ECF No. 14.
Plaintiff now seeks return of the filing fee, again attaching a copy of the Judgement (ECF No. 3)
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administratively terminating the case for failure to pay the fee or move to proceed IFP. ECF No.
15 at 2. This again ignores this Court’s subsequent Order granting Plaintiff’s Motion to proceed
IFP and permitting amendment of the Complaint.
As the Supreme Court has noted,
Congress required prisoners to pay filing fees for the suits or appeals they launch.
The provisions on fee payment, set forth in § 1915(b), read:
(1) . . . [I]f a prisoner brings a civil action or files an appeal in forma pauperis, the
prisoner shall be required to pay the full amount of a filing fee.
Bruce v Samuels, 136 S. Ct. 627, 630 (2016). Plaintiff’s continued reliance on an order which has
been superseded is misplaced. His Motion to proceed IFP was granted, he was permitted to amend
the Complaint, but chose not to do so, and ten months later the Complaint was dismissed with
prejudice. The filing fee was therefore properly assessed under § 1915(b), and his request to have
the fee returned is in all respects DENIED.
The Court hereby certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor
person is denied. See Coppedge v. United States, 369 U.S. 438 (1962). Requests to proceed on
appeal as a poor person should be directed, on motion, to the United States Court of Appeals for
the Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.
Dated: September 15, 2020
Rochester, New York

______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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