Biton v. Turco
- Colleen McMahon
- 1:19-cv-11960
- U.S. District Court · Southern District of New York
- 2
In Biton v. Turco, Judge McMahon dismissed the case without prejudice because Plaintiff did not obtain required permission to file without fees.
Marcelle Crystal Biton, also identifying herself as Saphyre Redford, whose case was dismissed without prejudice and whose fee-free status for an appeal was denied.
What happened
In Biton v. Turco, Marcelle Crystal Biton, also identifying herself as Saphyre Redford, filed a new case without a lawyer and asked to proceed without paying filing fees.
A 2011 court order barred Plaintiff from filing new fee-free cases unless she first obtained permission. Because she did not seek that permission, the court dismissed this case without prejudice. It also denied fee-free status for any appeal, finding that an appeal would not be taken in good faith.
Chief Judge Colleen McMahon issued the dismissal order on January 6, 2020.
The detailed version
- Biton v. Turco · No. 1:19-cv-11960
- Colleen McMahon
- Jan. 6, 2020
Background
Marcelle Crystal Biton, also identifying herself as Saphyre Redford, filed the complaint without a lawyer and requested permission to proceed without paying filing fees. The opinion states that she had previously filed frivolous actions under several names. In a prior related proceeding, the court ordered that she could not file any new case without fees unless she first obtained permission from the court.
Reason for dismissal
Plaintiff filed this case but did not ask for the permission required by the earlier order. The court therefore dismissed the action without prejudice under 28 U.S.C. § 1651 for failure to comply with that order. A dismissal without prejudice does not itself bar a new filing, although the opinion does not describe what steps would be required for any future filing.
Appeal-related ruling
The court certified under 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith. It therefore denied Plaintiff permission to proceed without paying fees for an appeal. Chief Judge Colleen McMahon also directed the Clerk of Court to assign the matter to her docket, mail the order to Plaintiff, and record service on the docket.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.