Fonseca v. Department of Corrections
- Colleen McMahon
- 1:20-cv-09398
- U.S. District Court · Southern District of New York
- 2
In Fonseca v. Department of Corrections, Judge McMahon ordered Fonseca to pay filing fees or submit forms to proceed.
Andre Fonseca, an incarcerated plaintiff proceeding without a lawyer, must pay the required fees or submit the forms needed to request permission to proceed without prepaying them.
What happened
Fonseca v. Department of Corrections concerns a civil case filed by Andre Fonseca, who was incarcerated and represented himself. He submitted the complaint without paying the required fees or providing the forms needed to request permission to proceed without paying fees upfront.
The court gave Fonseca 30 days to either pay $400 or submit a signed application and authorization allowing installment payments from his prison account. The court also directed the Clerk to mail him the order and said no summons would issue at that time.
Judge Colleen McMahon ordered these filing steps and warned that the action would be dismissed if Fonseca did not comply within the allowed time. She also denied permission to appeal without prepaying fees, finding that an appeal would not be taken in good faith.
The detailed version
- Fonseca v. Department of Corrections · No. 1:20-cv-09398
- Colleen McMahon
- Nov. 13, 2020
Background
Andre Fonseca filed this civil action while incarcerated in the Vernon C. Bain Center and proceeding without a lawyer. The complaint was originally filed with complaints from 49 other detainees; a magistrate judge later separated the claims and directed the Clerk of Court to open separate cases. This case was opened under docket number 20-CV-9398 (CM).
A prisoner starting a civil action must either pay the required fees or request permission to proceed without prepaying them. The total fee is $400: a $350 filing fee and a $50 administrative fee. If the court grants that request, the $350 filing fee is collected in installments from the prisoner's account. The prisoner must submit a signed application and an authorization allowing the withdrawals, along with certified account statements for the previous six months.
Court's Order
Fonseca submitted the complaint without the fees, a completed application to proceed without prepaying fees, or a prisoner authorization. The court ordered him, within 30 days of the order, to do one of two things:
- pay the $400 in fees; or - submit the attached application and prisoner authorization forms, labeled with docket number 20-CV-9398 (CM).
The court directed the Clerk to mail Fonseca a copy of the order and note service on the docket. No summons would issue at that time. The order states that, if Fonseca complied, the case would be processed under the Clerk's procedures. It also states that, if he failed to comply within the allowed time, the action would be dismissed.
Appeal and Prisoner-Filing 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 warned that a prisoner whose case is dismissed as frivolous or for failing to state a claim may receive a statutory “strike.” After three such strikes, a prisoner generally cannot proceed without prepaying fees unless facing imminent danger of serious physical injury.
Disposition
Judge McMahon did not rule on the underlying claims. She ordered Fonseca to pay the fees or submit the required forms and stated that the action would be dismissed if he failed to comply. The order also denied permission to appeal without prepaying fees.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.