Kelsey v. Sherman
- Vincent Briccetti
- 7:22-cv-01934
- U.S. District Court · Southern District of New York
- 3
In Kelsey v. Sherman, Judge Swain denied IFP status and gave Kelsey 30 days to pay $402 to continue the case.
Michael N. Kelsey, who was denied permission to proceed without paying fees and was given 30 days to pay $402 or face dismissal of the action; the defendants were not adjudicated on the underlying claims.
What happened
Michael N. Kelsey sued Christopher Sherman, Felix Catena, and Kathy Hochul without a lawyer and asked to proceed without paying the fees upfront. The court had previously found that, while Kelsey was a prisoner, he had accumulated at least three prior federal cases or appeals dismissed as malicious, frivolous, or for failure to state a claim.
Kelsey submitted a declaration explaining why he believed the filing bar should not apply, but the court found it insufficient. The court also denied his request to delay the decision until after his expected release. Kelsey then paid the $350 filing fee, but the court said he must pay the $350 filing fee and the $52 administrative fee because he could not proceed without paying under the three-strikes rule.
Judge Laura Taylor Swain denied Kelsey's request to proceed without paying the fees, directed the Clerk to return his $350 payment, and gave him 30 days to submit $402. The court stated that it would enter judgment dismissing the case if he did not pay within that period, and denied fee-free status for any appeal.
The detailed version
- Kelsey v. Sherman · No. 7:22-cv-01934
- Vincent Briccetti
- Apr. 26, 2022
Background
Michael N. Kelsey filed the action without a lawyer and sought permission to proceed without paying the filing fees upfront. The court had previously determined that, while Kelsey had been a prisoner, he filed at least three federal civil actions or appeals that were dismissed as malicious, frivolous, or for failure to state a claim. The court ordered him to explain why the Prison Litigation Reform Act's three-strikes provision, 28 U.S.C. § 1915(g), should not prevent him from proceeding without paying fees as a prisoner.
Kelsey submitted a declaration, but the court found that it did not provide a sufficient reason to avoid the filing bar. Kelsey also asked the court to delay deciding his fee-free status until after his expected release on May 5, 2022. The court denied that request because eligibility is assessed when the complaint is filed, and Kelsey was a prisoner at that time.
Rulings
The court recognized Kelsey as barred under Section 1915(g) from filing federal civil actions without paying fees while he is a prisoner, unless he is in imminent danger of serious physical injury. The court denied Kelsey's application to proceed without paying the fees in this action.
Kelsey paid the $350 filing fee after submitting his declaration. Because he could not proceed without paying under Section 1915(g), the court stated that he had to pay both the $350 filing fee and the $52 administrative fee, for a total of $402. The court directed the Clerk to return Kelsey's $350 payment and granted him 30 days from the order's date to submit the full $402. If he did not pay within that period, the court said it would enter judgment dismissing the action because he was barred from proceeding without paying and had not paid the required fees.
The court warned that submitting frivolous documents could result in additional sanctions, including monetary penalties. It also certified that any appeal from the order would not be taken in good faith and denied fee-free status for purposes of an appeal.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.