Chavez v. Gutwein
- Kenneth Karas
- 7:20-cv-00342
- U.S. District Court · Southern District of New York
- 2
In Chavez v. Gutwein, Judge McMahon ordered prisoner Ivan Chavez to pay fees or submit authorization within 30 days before the case proceeds.
Ivan Chavez must either pay $400 or submit the required prisoner authorization within 30 days. The defendants were not required to respond at this stage, and no summons issued.
What happened
In Chavez v. Gutwein, Ivan Chavez, who is incarcerated and representing himself, submitted a request to proceed without paying court fees upfront but did not submit the required authorization for prison-account deductions.
The court ordered Chavez, within 30 days, either to pay $400 or submit the authorization. No summons will issue yet, and the court stated that it will dismiss the action if he does not comply.
Chief Judge Colleen McMahon issued the order and denied permission to appeal without paying fees, finding that an appeal would not be taken in good faith.
The detailed version
- Chavez v. Gutwein · No. 7:20-cv-00342
- Kenneth Karas
- Jan. 24, 2020
Background
Ivan Chavez, who is incarcerated at Elmira Correctional Facility and is proceeding without a lawyer, filed this action against Eric Gutwein, Correction Officer A. Nucatola, Director of SHU D. Venettozzi, and Nurse Lurch. Chavez submitted an application to proceed without prepaying filing fees, commonly called an application to proceed in forma pauperis, but he did not submit the required prisoner authorization.
The court explained that a prisoner who receives permission to proceed without prepaying fees must authorize deductions from the prison trust-fund account to collect the $350 filing fee in installments. The $50 administrative fee does not apply to a person granted that permission.
Order
The court ordered Chavez, within 30 days of the order, either to pay the $400 in fees or complete and submit the attached prisoner authorization, labeled with docket number 20-CV-0342 (CM). The Clerk of Court was directed to mail Chavez a copy of the order and record service on the docket.
No summons will issue at this time. If Chavez complies, the Clerk's Office will process the case under its procedures. If he does not comply within the allowed time, the court stated that it will dismiss the action. The order did not decide the underlying claims against the defendants.
Appeal and prisoner-strike warning
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 therefore denied permission to appeal without prepaying fees. The court also cautioned that a later dismissal of a prisoner's federal civil action as frivolous, malicious, or for failure to state a claim may count as a strike under 28 U.S.C. § 1915(g), and that three such strikes generally prevent a prisoner from proceeding without prepaying fees unless the prisoner faces imminent danger of serious physical injury.
Chief United States District Judge Colleen McMahon signed the order.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.