Calloway v. Department of Corrections
- Colleen McMahon
- 1:20-cv-09494
- U.S. District Court · Southern District of New York
- 2
In Calloway v. Brann, Judge McMahon dismissed the complaint without prejudice after Calloway failed to pay fees or submit required forms.
Calloway’s complaint was dismissed without prejudice because he did not pay the filing fee or submit the required fee-waiver materials, and his fee-free appeal status was denied.
What happened
Calloway v. Commissioner Cynthia Brann, et al. concerned a complaint filed without paying the filing fee. The court ordered Calloway to either pay $400 or submit a completed request to proceed without paying the fee and a prisoner authorization within 30 days.
The order was returned because Calloway was no longer held at that facility. Calloway had not followed the court’s instructions, updated his mailing address, or contacted the court. The court therefore dismissed the complaint without prejudice.
Judge Colleen McMahon also ruled that an appeal would not be taken in good faith and denied Calloway permission to appeal without paying the filing fee. The court did not address the underlying claims.
The detailed version
- Calloway v. Department of Corrections · No. 1:20-cv-09494
- Colleen McMahon
- Dec. 11, 2020
Background
Calloway filed a complaint without paying the filing fee, relying on the federal statute that allows a person who cannot pay to request permission to proceed without paying fees. On November 18, 2020, the court ordered Calloway either to pay the required $400 in filing fees or submit a completed fee-waiver application and prisoner authorization within 30 days.
On December 1, 2020, the order was returned to the court with a notation that Calloway was no longer held at that facility. Calloway had not complied with the order, had not notified the court of a change of mailing address, and had not otherwise contacted the court.
Ruling
The court dismissed Calloway’s complaint without prejudice under 28 U.S.C. §§ 1914 and 1915. The order did not decide the merits of the complaint.
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. It therefore denied permission to proceed without paying fees for purposes of an appeal. The Clerk of Court was directed to mail the order to Calloway’s last known address and record service on the docket.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.