Kelsey v. Sherman
- Vincent Briccetti
- 7:22-cv-01934
- U.S. District Court · Southern District of New York
- 4
In Kelsey v. Sherman, Judge Swain granted Kelsey 30 more days to pay $402 after denying his request to proceed without fees under the PLRA.
Michael N. Kelsey and the pending action. The order gave Kelsey 30 days to pay $402, warned that the action would be dismissed if he did not pay, and addressed the fee requirements and screening rules that would apply to future actions he filed while incarcerated.
What happened
In Kelsey v. Sherman, Michael N. Kelsey asked the court to clarify whether his federal civil-rights case had been dismissed and whether paying $402 would revive it. The court explained that the case remained pending.
Kelsey filed the case while incarcerated and without a lawyer. The court had determined that the Prison Litigation Reform Act’s three-strikes rule barred him from proceeding without paying filing fees unless he faced imminent danger of serious physical injury. The court had returned his $350 payment and given him an opportunity to pay the required total of $402.
Judge Laura Taylor Swain treated Kelsey’s letter as a request for more time and granted a 30-day extension to pay $402. The court warned that no further extension would be granted and that it would enter judgment dismissing the case if he did not pay. The court also denied fee-waiver status for any appeal from the order.
The detailed version
- Kelsey v. Sherman · No. 7:22-cv-01934
- Vincent Briccetti
- May 12, 2022
Background
Michael N. Kelsey filed this federal civil-rights action while he was incarcerated and without a lawyer. The court had previously determined that he was barred by the Prison Litigation Reform Act’s (PLRA) three-strikes provision, 28 U.S.C. § 1915(g), from proceeding without paying filing fees while incarcerated, unless he could show that he faced imminent danger of serious physical injury.
Because Kelsey had filed the action while he was a prisoner, the court explained that the PLRA applied to this action even though Kelsey later reported that he had been released. The court had denied his application to proceed without paying the fees, returned his $350 payment, and allowed him time to pay the required total of $402. The action had not been dismissed and remained pending.
Kelsey then sent a letter expressing confusion about whether paying $402 would revive this action or start a new one. The court also explained that any future federal civil-rights action Kelsey filed while incarcerated would be subject to the PLRA’s screening requirements and that, unless an exception applied, he would have to pay the full filing fees. The opinion stated that Kelsey could request withdrawal of this action and later refile it as a nonprisoner.
Ruling
Judge Laura Taylor Swain construed Kelsey’s letter as a request for an extension of time to pay the fees and granted that request. Kelsey was required to submit the full $402 within 30 days, and the court stated that it would grant no further extensions.
The court warned that if Kelsey failed to pay within that period, it would enter judgment dismissing the action because he was barred from proceeding without paying the fees and had not paid the required amount. The court also certified that an appeal from the order would not be taken in good faith and denied payment-free status for purposes of an appeal.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.