Rosario v. Department of Corrections

Background

Emmanuel Rosario filed this civil action while incarcerated and representing himself. The opinion states that he originally filed the complaint with 49 other detainees, but a magistrate judge severed the claims and directed the Clerk of Court to open separate cases. Rosario submitted his complaint without paying the required fees and without a completed application to proceed without prepaying fees or a prisoner authorization.

Fee and filing requirements

The court explained that a prisoner filing a civil action must either pay $400—the $350 filing fee and $50 administrative fee—or request permission to proceed without prepaying fees. That request requires a signed application and a prisoner authorization. If the court grants that request, the $350 filing fee must be collected in installments from the prisoner’s account. The authorization also directs the correctional facility to deduct those payments and requires certified account statements for the prior six months.

Order

The court ordered Rosario, within 30 days of the order, to pay the $400 in fees or submit the attached fee-waiver application and prisoner authorization labeled with docket number 20-CV-9410 (CM). The Clerk was directed to mail him the order and record service on the docket. No summons was to issue at that time. The court stated that, if Rosario complied, the case would be processed under the Clerk’s procedures, but if he failed to comply within the allowed time, the action would be dismissed.

Judge Colleen McMahon also certified that an appeal from the order would not be taken in good faith and denied permission to appeal without prepaying fees. The order cautioned that a later dismissal for frivolousness or failure to state a claim could count as a strike under the prisoner litigation statute, potentially limiting a prisoner’s ability to file future actions without prepaying fees.