Sowell v. Kelly
- Colleen McMahon
- 1:20-cv-11049
- U.S. District Court · Southern District of New York
- 2
In Sowell v. Kelly, Judge McMahon ordered Randy Sowell to correct his prisoner authorization or pay fees, warning noncompliance would dismiss the case without prejudice.
Randy Sowell must correct the prisoner authorization or pay the fees within 30 days to avoid dismissal without prejudice; the case will not proceed to summons issuance unless he complies.
What happened
In Sowell v. Kelly, Randy Sowell, who is incarcerated and representing himself, submitted an application to proceed without paying the filing fee upfront and a prisoner authorization. The authorization directed payments to the wrong federal court.
The court gave Sowell 30 days to either pay the required fees or submit the attached authorization directing installment payments to this court and identifying docket number 20-CV-11049 (CM). The court said no summons would issue at that time.
Judge Colleen McMahon ordered the case to be processed if Sowell complies and said the action will be dismissed without prejudice if he does not. The court also denied permission to appeal without prepaying fees, finding that an appeal would not be taken in good faith.
The detailed version
- Sowell v. Kelly · No. 1:20-cv-11049
- Colleen McMahon
- Jan. 4, 2021
Background
Randy Sowell, who was incarcerated on Rikers Island and proceeding without a lawyer, brought this civil action against Captain Kelly and other defendants. To proceed without paying court fees upfront, a prisoner must submit an application to proceed without prepayment of fees and a prisoner authorization. The authorization permits installment deductions from the prisoner's account for the filing fee and directs the facility to send the court certified account statements for the previous six months.
Sowell submitted both documents, but his authorization permitted payments to be sent to the United States District Court for the Northern District of New York rather than this court.
Order
The court directed Sowell, within 30 days of the order, to either pay the fees or complete and submit the attached prisoner authorization authorizing payment to this court. The authorization must include docket number 20-CV-11049 (CM). The Clerk was directed to mail the order to Sowell and record service on the docket. No summons was to issue at that time.
Disposition
Judge Colleen McMahon stated that the case would be processed under the Clerk's Office procedures if Sowell complied. If he failed to comply within the allowed time, the action would be dismissed without prejudice, meaning the order did not bar refiling. The court also certified that any appeal from the order would not be taken in good faith and denied permission to appeal without prepaying fees. The order did not decide the underlying claims against the defendants.
Additional statutory warning
The order cautioned that a case dismissed as frivolous, malicious, or for failing to state a claim can count as a strike under the Prison Litigation Reform Act. After three such strikes, a prisoner generally cannot proceed without prepaying fees unless the prisoner faces imminent danger of serious physical injury.
Fees stated in the opinion
The opinion first describes the fees as $400, consisting of a $350 filing fee and a $50 administrative fee. It later directs Sowell to pay $402 and includes a footnote stating that a $52 administrative fee does not apply to people granted permission to proceed without prepayment. The order therefore contains inconsistent fee figures.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.