Petroceli v. FBI Buffalo Division Field Office
- Colleen McMahon
- 1:21-cv-01205
- U.S. District Court · Southern District of New York
- 2
In Petroceli v. FBI Buffalo Division Field Office, Judge McMahon declined to vacate dismissal or reopen the case after finding Petroceli’s fee-waiver application insufficient.
Domingos Lugao Petroceli, whose request to vacate the dismissal and reopen the case was denied; the court permitted him to file a new case with the filing fee or a sufficiently supported fee-waiver application.
What happened
In Petroceli v. FBI Buffalo Division Field Office, the court had ordered Domingos Lugao Petroceli to submit a complete application to proceed without paying filing fees or pay the $402 filing fee. After he did neither, the court dismissed the complaint without prejudice on June 14, 2021.
The court then received another fee-waiver application on the same day as the dismissal. It found that the new application was almost identical to the first and did not answer the required questions showing that Petroceli could not afford the fee.
The court declined to vacate the dismissal and judgment or reopen the case. Judge McMahon directed the Clerk to terminate the new application and said Petroceli could file a new case with the fee or a sufficiently supported fee-waiver application. The court also denied fee-waiver status for an appeal.
The detailed version
- Petroceli v. FBI Buffalo Division Field Office · No. 1:21-cv-01205
- Colleen McMahon
- July 9, 2021
Background
On March 18, 2021, the court directed Plaintiff to submit an amended application to proceed without paying filing fees or pay the $402 required to file a civil action. The order stated that failing to comply would result in dismissal. Because Plaintiff did not submit an amended application or pay the fee, the court dismissed the complaint without prejudice by order and judgment dated June 14, 2021.
The court received an application to proceed without paying filing fees, along with other documents, on the same date it issued the dismissal. The court reviewed that application and found it was almost identical to Plaintiff’s initial application. It again did not answer the form’s questions establishing that Plaintiff could not pay the filing fee.
Ruling
The court found the new application insufficient and noncompliant with its March 18 order. It therefore declined to vacate the June 14 dismissal and judgment and declined to reopen the case. The Clerk of Court was directed to terminate the new application, identified as ECF No. 5.
The court stated that Plaintiff could pursue the claims by filing a new case accompanied by the required fee or by submitting an application containing enough information to establish inability to pay the $402 fee. The Clerk was instructed not to accept further submissions under this docket number except papers directed to the United States Court of Appeals for the Second Circuit.
The court certified under 28 U.S.C. § 1915(a)(3) that an appeal from this order would not be taken in good faith and denied permission to proceed without paying fees for purposes of an appeal.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.