Palompelli v. Smith
- Cathy Seibel
- 7:20-cv-08070
- U.S. District Court · Southern District of New York
- 2
In Palompelli v. Smith, Judge McMahon ordered Frank Palompelli to pay fees or submit forms to proceed, warning of dismissal for noncompliance.
Frank Palompelli, an incarcerated plaintiff representing himself, was required to pay the filing fees or submit the forms needed to request permission to proceed without prepayment.
What happened
In Palompelli v. Smith, Frank Palompelli, who is incarcerated and representing himself, filed a civil action without paying the required fees or submitting complete forms to request permission to proceed without paying them upfront.
The court gave Palompelli 30 days to pay $400 or submit a completed application and authorization allowing installment deductions from his prison account. The court also directed the Clerk to mail him the order and said no summons would issue yet.
Judge Colleen McMahon ordered the payment or forms and stated that the action would be processed if Palompelli complied, but would be dismissed if he did not. The court also denied permission to appeal without prepayment of fees, finding that an appeal would not be taken in good faith.
The detailed version
- Palompelli v. Smith · No. 7:20-cv-08070
- Cathy Seibel
- Oct. 2, 2020
Background
Frank Palompelli filed a civil action against Jillian Smith, M.D., and other defendants. The opinion states that Palompelli was incarcerated at Shawangunk Correctional Facility and was proceeding without a lawyer. He submitted the complaint without the required filing fees, a completed application to proceed without prepaying those fees, or a completed prisoner authorization.
Court’s Order
The court explained that a prisoner filing a civil action must either pay $400 in fees—a $350 filing fee and a $50 administrative fee—or submit the forms needed to request permission to proceed without prepayment. If that request is granted, the $350 filing fee must be collected in installments from the prisoner’s prison trust account. The prisoner authorization permits those deductions and requires submission of certified trust-account statements for the preceding six months.
The court ordered Palompelli, within 30 days of the order, either to pay the $400 or to complete and submit the attached application and prisoner authorization, labeled with docket number 1:20-CV-8070 (CM). The Clerk was directed to mail him the order and note service on the docket. No summons was to issue at that time.
Disposition
Judge Colleen McMahon ordered that the action be processed under the Clerk’s procedures if Palompelli complied. The order states that the action would be dismissed if he failed to comply within the allowed period. The court also certified under 28 U.S.C. § 1915(a)(3) that an appeal would not be taken in good faith and denied permission to appeal without prepayment of fees. The order separately cautioned that certain future dismissals of prisoner actions could count as strikes under 28 U.S.C. § 1915(g).
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.