Ware v. Brann

Background

Walter Ware, who was incarcerated in the Vernon C. Bain Center and represented himself, filed this civil action against Cynthia Brann, NYC DOC Commissioner, and other defendants. He submitted the complaint without paying the required fees and without completing an application to proceed without prepaying fees or a prisoner authorization.

Court’s order

The court explained that a prisoner filing a civil action must either pay $402 in fees—a $350 filing fee and a $52 administrative fee—or submit a signed application to proceed in forma pauperis (IFP), meaning without prepaying fees, together with a prisoner authorization. If IFP status is granted, the $350 filing fee must be collected in installments from the prisoner’s account. The authorization also directs the facility to make those deductions and provide certified account statements for the prior six months.

The court ordered Ware, within 30 days of the order, to pay the $402 or submit the completed IFP application and prisoner authorization labeled with the case number. The Clerk was directed to mail the order to Ware and record service. No summons would issue at that time. The order stated that the case would be processed under the Clerk’s procedures if Ware complied and that the action would be dismissed if he did not comply within the permitted time.

Appeal and warning

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 denied IFP status for purposes of an appeal. The court 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 strikes, a prisoner generally cannot proceed IFP in new actions unless an imminent danger of serious physical injury is alleged, and must pay the filing fee when filing.