Javier v. Russo
- Vincent Briccetti
- 7:21-cv-07097
- U.S. District Court · Southern District of New York
- 2
In Javier v. Russo, Judge Swain ordered a $350 overpayment returned and denied permission to appeal without paying court fees.
Al Javier, who was entitled to receive the $350 overpayment and was denied permission to appeal this order without paying the filing fee.
What happened
In Al Javier v. Anthony Russo, et al., Javier, who is incarcerated and representing himself, had already paid the full filing fee for the action.
The court received a second $350 check from Javier’s prison account after he filed an amended complaint. Because no additional filing fee was required, the court directed the Clerk to return the overpayment.
Judge Laura Taylor Swain also determined that any appeal from the order would not be taken in good faith and denied permission to appeal without paying the filing fee. The Clerk was directed to mail Javier a copy of the order and record service on the docket.
The detailed version
- Javier v. Russo · No. 7:21-cv-07097
- Vincent Briccetti
- Jan. 28, 2022
Background
Al Javier proceeded without a lawyer and had been allowed to proceed without prepaying the full filing fee, using installment payments instead. The court received $350 from his prison account on September 28, 2021, and that payment satisfied the entire filing fee. Javier later filed an amended complaint. On January 25, 2022, the court received another $350 check from his prison account for the same action.
The opinion’s footnote states that the action had been closed because Javier did not timely file the amended complaint, but that the court later received the amended complaint and vacated the dismissal after Javier showed good cause for filing late. This order addressed the duplicate payment, not the claims in the amended complaint.
Ruling
Because Javier had already paid the full filing fee and did not owe another fee for the action, the court directed the Clerk of Court to return the $350 overpayment to him. The court also certified under 28 U.S.C. § 1915(a)(3) that an appeal from this order would not be taken in good faith. It therefore denied permission to appeal without paying the filing fee.
The Clerk was directed to mail Javier a copy of the order and note service on the docket.
Effect
The order required the return of the second $350 payment and denied fee-free appeal status for this order. It did not decide the merits of Javier’s underlying claims.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.