Cantero v. Russo
- Colleen McMahon
- 1:19-cv-08596
- U.S. District Court · Southern District of New York
- 13
In Cantero v. Russo, Judge McMahon gave Jose Luis Cantero 15 days to amend or withdraw his constitutional-rights case and denied fee-free appeal status.
Jose Luis Cantero was given 15 days to amend his complaint or withdraw the action. Maria Juana Guaman Quizhni could not proceed as a plaintiff in this action because she had not signed the complaint or submitted an application to proceed without paying fees; she was told how to file an action on her own behalf.
What happened
Jose Luis Cantero filed a constitutional-rights complaint while representing himself and asking to proceed without paying court fees. Maria Juana Guaman Quizhni was listed as a plaintiff, but she did not sign the complaint or submit a fee-waiver application, and the complaint did not allege violations of her rights.
The court had previously dismissed Cantero’s claims but allowed him to file an amended complaint, and dismissed Quizhni as a plaintiff without prejudice. In this order, the court gave Cantero 15 more days to amend. He could instead submit a letter saying he wanted to withdraw the case. Quizhni was told that she would need to file her own signed complaint and fee-waiver application if she wanted to pursue her own claims.
Judge Colleen McMahon ordered the Clerk to mail the order to Cantero and Quizhni. The court said the case would be dismissed for the reasons in the earlier order if Cantero did not amend, and denied fee-waiver status for any appeal because an appeal would not be taken in good faith.
The detailed version
- Cantero v. Russo · No. 1:19-cv-08596
- Colleen McMahon
- Dec. 4, 2019
Background
Jose Luis Cantero filed a complaint alleging that Kevin Russo and other defendants violated his constitutional rights. Cantero was proceeding without a lawyer and requested permission to proceed without paying court fees. The opinion states that Cantero had been incarcerated at the Rockland County Jail when he filed the complaint, but had since been released and provided an updated address.
Maria Juana Guaman Quizhni, identified as Cantero’s fiancé, was listed as a plaintiff in the caption. She did not sign the complaint or submit an application to proceed without paying fees. The complaint also did not allege that the defendants violated Quizhni’s federally protected rights.
Earlier Order and Current Filing
In an order dated September 24, 2019, the court dismissed Cantero’s claims and gave him 30 days to file an amended complaint. The court dismissed Quizhni as a plaintiff without prejudice to any action she might bring on her own behalf.
Cantero and Quizhni later submitted a joint letter stating that Cantero would no longer proceed because, in their words, his claims had been denied, while Quizhni wished to continue seeking relief based on the constitutional violations described in the original complaint.
What the Court Ordered
The court gave Cantero 15 days from the date of this order to file an amended complaint. If he did not do so, the action would be dismissed for the reasons stated in the September 24 order. Alternatively, Cantero could submit a letter stating that he wished to withdraw the action under Federal Rule of Civil Procedure 41(a).
The court reiterated that Quizhni could not proceed in this matter because she had not signed the complaint or submitted an application to proceed without paying fees. If Quizhni wished to file an action on her own behalf, she had to submit a signed complaint and such an application, alleging facts showing that named defendants violated her federally protected rights. The court attached blank complaint and application forms.
The court directed the Clerk to mail the order to Cantero and Quizhni and note service on the docket. It also certified under 28 U.S.C. § 1915(a)(3) that an appeal from the order would not be taken in good faith and denied permission to proceed without paying fees for purposes of an appeal.
Disposition
This order did not itself dismiss the action. It gave Cantero additional time to amend or withdraw and stated that dismissal would follow if he failed to amend. It also maintained Quizhni’s inability to proceed as a plaintiff in this action and explained how she could file a separate action on her own behalf.
Read the full 13-page opinion on CourtListener, the free public archive maintained by the Free Law Project.