Mercado v. Kiszka
- Nelson Roman
- 7:21-cv-02121
- U.S. District Court · Southern District of New York
- 2
In Mercado v. Kiszka, Judge McMahon ordered Matthew Mercado to pay stated fees or submit forms within 30 days before the case could proceed.
Matthew Mercado, an incarcerated plaintiff representing himself, was required to pay the stated fees or submit the required fee-waiver and prisoner-authorization forms within 30 days. The action could be dismissed if he did not comply.
What happened
Matthew Mercado, who was incarcerated and representing himself, filed this lawsuit without paying the required fees or submitting the forms needed to ask to proceed without paying fees upfront.
The court ordered Mercado, within 30 days, either to pay the fees or submit a signed application and authorization allowing installment deductions from his account. The court 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 on March 12, 2021. The order also denied permission to appeal without paying fees and warned that a qualifying dismissal could count as a strike under federal prisoner-filing rules.
The detailed version
- Mercado v. Kiszka · No. 7:21-cv-02121
- Nelson Roman
- Mar. 12, 2021
Background
Matthew Mercado filed a civil action while incarcerated at Orange County Jail and representing himself. He submitted the complaint without paying the filing fees and without a completed application to proceed without paying fees upfront or a prisoner authorization.
Payment and filing requirements
The court explained that a prisoner must either pay the required fees or submit an application and authorization to proceed without prepayment. If the court grants that application, the $350 filing fee is collected in installments from the prisoner’s account. The authorization also directs the correctional facility to deduct those payments and provide certified account statements for the prior six months.
The order states that the total required payment is $402.00 in one passage—$350.00 for the filing fee and $52.00 for the administrative fee—but later directs Mercado to pay $400.00. It also explains that the $52.00 administrative fee does not apply to a person granted permission to proceed without prepayment.
Order
Within 30 days of the order, Mercado had to either pay the amount specified by the order or submit the attached application and prisoner authorization, labeled with docket number 21-CV-2121 (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 Mercado complied, the case would be processed under the Clerk’s procedures; if he failed to comply within the permitted time, the action would be dismissed.
Appeal and strike warning
The court certified under 28 U.S.C. § 1915(a)(3) that an appeal from the order would not be taken in good faith and denied permission to proceed without prepaying appellate fees. The court also warned that a prisoner’s dismissal for frivolousness or failure to state a claim can count as a “strike” under 28 U.S.C. § 1915(g), and that three strikes generally prevent a prisoner from proceeding without prepaying fees unless the prisoner faces imminent danger of serious physical injury.
Classification
This is a procedural order. It addresses payment and fee-waiver paperwork and does not decide the merits of Mercado’s claims. Chief Judge Colleen McMahon directed Mercado to comply with the payment or filing requirements; the order did not dismiss the action at that time.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.