Smickle v. Croce

Background

Randel O. Smickle, who is incarcerated at Shawangunk Correctional Facility and is proceeding without a lawyer, brought this action against Attorney Michael Croce. The opinion does not describe the underlying claims. The matter had been transferred from the United States District Court for the Eastern District of New York in a prior related proceeding, No. 23-CV-2697.

A prisoner starting a civil action must either pay the required fees or request permission to proceed without prepaying them. The total fees are $402: a $350 filing fee and a $52 administrative fee. If permission to proceed without prepayment is granted, the $350 filing fee is collected in installments from the prisoner’s account. The prisoner must therefore submit a signed application and an authorization allowing those withdrawals and providing certified account statements.

Order

Smickle submitted a prisoner authorization captioned for a different court. The court ordered him, within 30 days of the order, either to pay the $402 in fees or submit the attached prisoner authorization form. If he submits the form, it must be labeled with docket number 23-CV-3439 (LTS).

The Clerk of Court was directed to mail Smickle a copy of the order and record service on the docket. No summons was to issue at that time. The court stated that the case would be processed under the Clerk’s Office procedures if Smickle complied and that the action would be dismissed if he failed to comply within the permitted time.

Disposition

Judge Laura Taylor Swain ordered updated prisoner authorization rather than dismissing the action at that stage. She also certified under 28 U.S.C. § 1915(a)(3) that an appeal from the order would not be taken in good faith and denied permission to appeal without prepaying fees. The opinion cautioned that a future dismissal as frivolous or for failure to state a claim could count as a statutory “strike,” but it did not make such a dismissal here.