Fernandez v. Department of Corrections
- Colleen McMahon
- 1:20-cv-09488
- U.S. District Court · Southern District of New York
- 2
In Fernandez v. Department of Corrections, Judge McMahon ordered Noel Fernandez to pay fees or submit forms, warning the action could be dismissed.
Noel Fernandez, the incarcerated plaintiff proceeding without a lawyer, must pay the fees or submit the required forms for the action to continue.
What happened
In Fernandez v. Department of Corrections, Noel Fernandez, who is incarcerated and representing himself, filed a civil action without paying the required fees or submitting the forms needed to request permission to proceed without prepaying them.
The court ordered Fernandez, within 30 days, either to pay $400 in fees or submit a completed application and authorization allowing payments to be deducted from his account. The court also directed the Clerk to mail him the order, and no summons was to issue at that time.
Judge Colleen McMahon stated that if Fernandez did not comply, the action would be dismissed without prejudice. She also denied permission to proceed without prepaying fees for any appeal from this order, certifying that such an appeal would not be taken in good faith.
The detailed version
- Fernandez v. Department of Corrections · No. 1:20-cv-09488
- Colleen McMahon
- Nov. 13, 2020
Background
Noel Fernandez, who was incarcerated at the Vernon C. Bain Center and proceeded without a lawyer, brought this action against Commissioner Cynthia Brann and other defendants. The opinion states that Fernandez originally filed the complaint with 49 other detainees, and that the claims were later separated into individual cases. The court’s order concerns filing fees and the paperwork required to request permission to proceed without prepaying those fees; it does not address the underlying claims.
Fee or application requirement
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 a signed application to proceed without prepaying fees and a prisoner authorization. If permission is granted, the $350 filing fee is collected in installments from the prisoner’s account. The prisoner authorization permits the facility to deduct those payments and provide the court with account statements for the previous six months.
Fernandez had submitted the complaint without the fees, a completed application, or a prisoner authorization. The court ordered him to do one of the following within 30 days of the order: pay the $400 in fees, or submit the required application and authorization labeled with docket number 20-CV-9488 (CM). The Clerk was directed to mail him a copy of the order and note service on the docket. No summons was to issue at that time.
Ruling
Judge Colleen McMahon ordered Fernandez to pay the fees or submit the required forms. The order states that if he failed to comply within the allowed time, the action would be dismissed without prejudice. The court also certified under 28 U.S.C. § 1915(a)(3) that an appeal from the order would not be taken in good faith and denied permission to proceed without prepaying fees for purposes of an appeal. The order further cautioned that a later dismissal as frivolous or for failure to state a claim could count as a qualifying dismissal, or “strike,” 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.