Clark v. Department of Corrections
- Paul Gardephe
- 1:20-cv-09419
- U.S. District Court · Southern District of New York
- 2
In James Clark v. Brann, Judge McMahon ordered Clark to pay the fees or submit forms to proceed without prepayment, warning the case could be dismissed.
James Clark, an incarcerated plaintiff representing himself, whose case could be dismissed if he does not pay the required fees or submit the required forms within 30 days.
What happened
James Clark v. Commissioner Cynthia Brann, et al. concerns Clark’s attempt to bring a civil action while incarcerated and without a lawyer. The court said he had not paid the required fees or submitted the forms needed to request permission to proceed without prepayment.
The order gave Clark 30 days to pay $400 or submit a signed application and authorization allowing installment deductions from his prisoner account. The court also said no summons would issue yet and warned that the action would be dismissed if he did not comply.
Chief Judge Colleen McMahon issued the order. She also denied permission to appeal without prepaying fees, certifying that an appeal would not be taken in good faith.
The detailed version
- Clark v. Department of Corrections · No. 1:20-cv-09419
- Paul Gardephe
- Nov. 17, 2020
Background
James Clark, who was incarcerated at the Vernon C. Bain Center, filed this action without a lawyer. He had originally filed the complaint with 49 other detainees; a magistrate judge severed the claims and directed the Clerk of Court to open separate cases.
Clark submitted the complaint without paying the filing fees and without completing an application to proceed in forma pauperis (IFP), meaning without prepaying the fees, or a prisoner authorization. The court explained that a prisoner who receives permission to proceed IFP must pay the $350 filing fee in installments from the prisoner’s account. The separate $50 administrative fee does not apply to a prisoner granted IFP status.
Order
The court directed Clark, within 30 days, either to pay $400 in fees or to submit the attached IFP application and prisoner authorization. The authorization would allow the facility holding him to deduct the $350 filing fee in installments and send the court certified account statements for the previous six months.
The court directed the Clerk to mail the order to Clark and record service on the docket. No summons would issue at that time. If Clark complied, the case would be processed under the Clerk’s Office procedures; if he failed to comply within the allowed time, the action would be dismissed.
Appeal and related warning
Chief Judge Colleen McMahon 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 IFP status for purposes of an appeal. The order also warned that a future dismissal for frivolousness or failure to state a claim could count as a statutory “strike” affecting a prisoner’s ability to proceed IFP in later cases.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.