Fate v. John
- Colleen McMahon
- 1:18-cv-03493
- U.S. District Court · Southern District of New York
- 2
In Fate v. John, Judge McMahon vacated the prior dismissal, kept the case paused, and denied fee-free appeal status.
Forest L. Fate, Sr.'s federal action against John and Harbor Auto Center was paused while the court considered whether Fate was barred from proceeding without paying the filing fee. Any appeal from this order could not proceed fee-free under the court's certification.
What happened
Forest L. Fate, Sr., representing himself, sued John and Harbor Auto Center. The court had dismissed the action without prejudice because it concluded that the Prison Litigation Reform Act barred Fate from proceeding without paying filing fees based on prior cases counted against him.
The Second Circuit Court of Appeals vacated that judgment and sent the case back for further proceedings. It directed the district court to reconsider whether two prior cases were properly counted under the law, in light of a later appellate decision.
Judge Colleen McMahon vacated the December 14, 2018 judgment and held Fate v. John in abeyance while the parties briefed the same issue in a related case. She also denied fee-free status for any appeal, finding that an appeal would not be taken in good faith.
The detailed version
- Fate v. John · No. 1:18-cv-03493
- Colleen McMahon
- Mar. 23, 2020
Background
Forest L. Fate, Sr. filed this action against John and Harbor Auto Center while representing himself. On December 14, 2018, the court dismissed the action without prejudice because it determined that Fate was barred by 28 U.S.C. § 1915(g), part of the Prison Litigation Reform Act, from filing federal civil actions without paying the filing fee. That provision concerns prior cases counted as “strikes.”
Fate appealed. The Second Circuit vacated the district court’s judgment and remanded the action for further proceedings. The appellate court directed the district court to consider whether two actions previously counted as strikes were properly counted under § 1915(g), in light of its decision in Escalera v. Samaritan Village.
Ruling
The court noted that it had issued an identical mandate in a related action involving Fate and had directed service on the defendants in that action for the limited purpose of briefing whether § 1915(g) barred Fate from proceeding without paying the filing fee. Because the same issue would be addressed through briefing in that related action, the court found that no additional litigation was needed in this case until that issue was resolved.
Judge Colleen McMahon therefore vacated the December 14, 2018 judgment and held this action in abeyance until the parties in the related action filed the briefs directed by the court. The court 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 fee-free status for purposes of an appeal. The Clerk was directed to mail Fate a copy of the order and note service on the docket.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.