Prendergast v. Department of Corrections
- Analisa Torres
- 1:20-cv-09418
- U.S. District Court · Southern District of New York
- 2
In Prendergast v. Brann, Judge McMahon ordered a fee or IFP filing within 30 days and warned that noncompliance would lead to dismissal.
Hopeton Prendergast, an incarcerated plaintiff representing himself, was required to pay the filing fees or submit the forms needed to request permission to proceed without prepaying them.
What happened
In Hopeton Prendergast v. Commissioner Cynthia Brann, et al., the plaintiff, who was 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 Prendergast to pay $400 or submit a completed application and authorization allowing installment withdrawals from his account within 30 days. The court also directed the Clerk to mail him the order, stated that no summons would issue yet, and warned that failure to comply would result in dismissal of the action.
Chief Judge Colleen McMahon issued the order on November 18, 2020. She also ruled that any appeal would not be taken in good faith and denied permission to proceed without prepaying the appeal fee.
The detailed version
- Prendergast v. Department of Corrections · No. 1:20-cv-09418
- Analisa Torres
- Nov. 18, 2020
Background
Hopeton Prendergast filed this civil action while incarcerated in the Vernon C. Bain Center and without a lawyer. The opinion states that he had filed the complaint without paying the required fees and without submitting a completed application to proceed without prepaying fees or a prisoner authorization. The complaint had originally been filed with 49 other detainees, but a magistrate judge had severed the claims and directed the Clerk to open separate cases.
Order
The court explained that a prisoner must either pay $400 in fees—a $350 filing fee and a $50 administrative fee—or request permission to proceed without prepaying fees by submitting a signed application and prisoner authorization. If that request is granted, the $350 filing fee is collected in installments from the prisoner’s account. The authorization also directs the correctional facility to make those deductions and provide certified copies of the prisoner’s account statements for the previous six months.
The court ordered Prendergast, within 30 days of the order, to do one of the following:
- Pay the $400 in fees; or - Submit the required application and prisoner authorization, labeled with docket number 20-CV-9418 (CM).
The Clerk was directed to mail Prendergast a copy of the order and record service on the docket. No summons would issue at that time. The court stated that, if Prendergast complied, the case would be processed under the Clerk’s Office procedures. If he failed to comply within the permitted time, the action would be dismissed.
Appeal and Prisoner-Litigation Warning
The court certified under 28 U.S.C. § 1915(a)(3) that any appeal from the order would not be taken in good faith and denied permission to proceed without prepaying fees for an appeal. The order also warned that a later dismissal of a prisoner’s federal civil action as frivolous, malicious, or for failure to state a claim can count as a “strike” under 28 U.S.C. § 1915(g). After three such strikes, a prisoner generally cannot proceed without prepaying fees in new federal civil actions unless the prisoner faces imminent danger of serious physical injury.
Effect of the Order
This order addressed filing-fee and required-form issues. It did not decide the underlying claims against the defendants. Chief Judge Colleen McMahon ordered payment or submission of the required forms and warned of dismissal for noncompliance.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.