Malloy v. Barry
- Colleen McMahon
- 1:19-cv-07906
- U.S. District Court · Southern District of New York
- 2
In Malloy v. Barry, Judge McMahon denied Malloy’s requests for more time to pay filing fees after dismissing the action without prejudice.
Anthony Malloy, whose requests for more time to pay the filing fees were denied; the case remained closed, with permission to refile under the conditions described by the court.
What happened
Malloy v. Barry began after the court denied Malloy’s request to proceed without paying filing fees and dismissed his complaint without prejudice under the Prison Litigation Reform Act’s three-strikes rule. The court said Malloy could start a new action by paying the required fees or showing that he faced an immediate threat of serious physical injury.
Malloy asked for more time to pay the $400 filing fees, first requesting 90 days and later requesting an extension through February 3, 2020. He also filed a notice of appeal from the earlier judgment.
Judge Colleen McMahon denied both requests for more time. The case remained closed, but Malloy may file a new complaint and pay the required fees; if he is no longer incarcerated, he may instead apply to proceed without paying them. The court also certified that an appeal from this order would not be taken in good faith and denied no-fee status for that appeal.
The detailed version
- Malloy v. Barry · No. 1:19-cv-07906
- Colleen McMahon
- Dec. 9, 2019
Background
On October 7, 2019, the court denied Anthony Malloy’s application to proceed in forma pauperis, meaning without prepaying the filing fees. The court dismissed his complaint without prejudice under the Prison Litigation Reform Act’s three-strikes rule. The court stated that Malloy was barred from filing a new action without paying the filing fees while incarcerated. It also explained that he could begin a new action by paying the required fees or by alleging facts showing that he faced an imminent threat of serious physical injury.
Requests for More Time
On November 1, 2019, the court received Malloy’s request for a 90-day extension to pay the $400 in filing fees. On November 12, 2019, Malloy filed a notice of appeal from the October 7 judgment. On November 22, 2019, the court received another request for an extension, this time asking for more time from December 3, 2019, through February 3, 2020.
Ruling
Judge Colleen McMahon denied Malloy’s requests for an extension of time to pay the filing fees. The court stated that the action had been dismissed without prejudice and that the case was closed. Malloy may refile the action at any time as a new complaint and pay the required fees. If he is no longer incarcerated, he may refile and either pay the fees or submit an application to proceed without prepaying them.
The court directed the Clerk of Court to mail Malloy a copy of the order and record service on the docket. It also certified under 28 U.S.C. § 1915(a)(3) that an appeal from this order would not be taken in good faith and denied Malloy permission to appeal without prepaying fees.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.