Kelly v. Department of Corrections
- Colleen McMahon
- 1:19-cv-09332
- U.S. District Court · Southern District of New York
- 2
In Kelly v. Department of Corrections, Judge McMahon dismissed Lance Kelly’s complaint without prejudice for failing to submit required filings or fees and denied appeal fee-waiver status.
Lance Kelly, whose complaint was dismissed without prejudice and whose request to proceed without paying appeal fees was denied. The opinion does not describe any merits ruling involving the Department of Corrections.
What happened
In Kelly v. Department of Corrections, Lance Kelly, who was incarcerated and representing himself, filed a complaint without signing it. He also did not pay the filing fees or submit the required application to proceed without paying them and the prisoner authorization form.
The court had given Kelly 30 days to correct these problems and warned that failing to do so would lead to dismissal. Kelly did not submit the required declaration and forms or pay the fees, so the court dismissed the complaint without prejudice.
Judge McMahon also ruled that any appeal would not be taken in good faith and denied Kelly permission to proceed without paying appeal fees. The opinion does not address the underlying claims.
The detailed version
- Kelly v. Department of Corrections · No. 1:19-cv-09332
- Colleen McMahon
- Nov. 21, 2019
Background
Lance Kelly, who was incarcerated at the Robert N. Davoren Complex on Rikers Island, filed this action without a lawyer. His complaint was not signed. He also did not pay the required filing fees or submit an application to proceed without paying them, known as an application to proceed in forma pauperis, or IFP, along with a prisoner authorization form.
Court’s Prior Order
In an October 10, 2019 order, the court directed Kelly to complete, sign, and submit a declaration stating that he had read the complaint and was the plaintiff in the action. The court also directed him either to pay the $400 filing fees or to submit a completed and signed IFP application and prisoner authorization form within 30 days. The order warned that failure to comply would result in dismissal.
Ruling
Kelly did not submit the declaration, IFP application, or prisoner authorization form, and he did not pay the filing fees. The court therefore dismissed the complaint without prejudice under 28 U.S.C. §§ 1914 and 1915. The opinion does not address the substance of Kelly’s claims.
The court also certified under 28 U.S.C. § 1915(a)(3) that an appeal from the order would not be taken in good faith. It therefore denied IFP status for an appeal. The Clerk of Court was directed to mail Kelly a copy of the order and record service on the docket.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.