Gunn v. Betivegna
- Louis Stanton
- 1:20-cv-00253
- U.S. District Court · Southern District of New York
- 2
In Gunn v. Bentivegna, Chief Judge McMahon ordered prisoner-plaintiff Gunn to pay filing fees or complete his fee-waiver application.
Darrell Gunn, who was incarcerated and representing himself, had to pay the required fees or submit a complete fee-waiver application within 30 days to avoid dismissal of the action.
What happened
Darrell Gunn v. Dr. Robert V. Bentivegna, et al. concerns Gunn’s civil action filed while he was incarcerated and representing himself. He submitted a prisoner authorization and only the first page of his application to proceed without paying fees upfront.
The court gave Gunn 30 days to either pay the required $400 in fees or submit both pages of a completed fee-waiver application. The court said it would dismiss the action if he did not comply, and no summons would issue at that time.
Chief Judge Colleen McMahon also ruled that any appeal would not be taken in good faith and denied fee-waiver status for an appeal. This order did not decide the underlying claims.
The detailed version
- Gunn v. Betivegna · No. 1:20-cv-00253
- Louis Stanton
- Jan. 14, 2020
Background
Darrell Gunn, who was incarcerated at Sing Sing Correctional Facility, filed this civil action without a lawyer. The opinion states that he submitted a prisoner authorization but only the first page of the two-page application to proceed without prepaying filing fees.
Fee requirements
The court explained that filing a civil action required either payment of $400—the $350 filing fee and $50 administrative fee—or submission of a completed application to proceed without prepayment of fees. Under the applicable prisoner-litigation statute, a prisoner granted this fee-waiver status must still pay the $350 filing fee in installments from the prisoner’s trust-fund account. The prisoner must also authorize those withdrawals and provide certified account statements for the previous six months.
Order
The court ordered Gunn, within 30 days of the order’s date, to either pay the $400 or submit both pages of a completed fee-waiver application. The application was to be labeled with docket number 20-CV-0253 (CM). The clerk was directed to mail the order to Gunn and record service on the docket. No summons was to issue at that time. The court stated that it would process the case under the clerk’s procedures if Gunn complied and would dismiss the action if he did not comply within the allowed time.
Appeal and caution
The court certified under 28 U.S.C. § 1915(a)(3) that an appeal from the order would not be taken in good faith and denied fee-waiver status for purposes of an appeal. The court also cautioned that a later dismissal for frivolousness, maliciousness, or failure to state a claim could count as a statutory “strike” affecting a prisoner’s ability to proceed without prepaying fees in future federal civil actions.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.