Smith v. The State of New York
- Laura Swain
- 1:23-cv-07613
- U.S. District Court · Southern District of New York
- 2
In Smith v. The State of New York, Judge Swain ordered the incarcerated plaintiff to pay fees or submit forms within 30 days, warning of dismissal.
Osmondo Dwayne Smith, an incarcerated plaintiff proceeding without a lawyer, must either pay the required fees or submit the specified forms within 30 days; the order does not address the defendants’ positions.
What happened
Smith v. The State of New York is a civil action filed by Osmondo Dwayne Smith, who is incarcerated and proceeding without a lawyer. He submitted his complaint without paying the required fees and without completing the forms needed to request permission to proceed without paying fees upfront.
The court gave Smith 30 days to either pay $402 or submit a completed application to proceed without prepayment and a prisoner authorization. If approved, the filing fee would be collected from his prison account in installments. The court did not issue a summons at this stage.
Judge Laura Taylor Swain ordered that the case would be processed if Smith complied, but warned that the action would be dismissed if he did not comply on time. The court also denied permission to appeal without paying fees, finding that an appeal from this order would not be taken in good faith.
The detailed version
- Smith v. The State of New York · No. 1:23-cv-07613
- Laura Swain
- Aug. 29, 2023
Background
Osmondo Dwayne Smith, who is incarcerated at Coxsackie Correctional Facility, filed this action without a lawyer. The Clerk initially docketed his submission as an amended complaint in another action, but the court later directed that it be opened as a new civil action under docket number 23-CV-7613.
Smith submitted the complaint without paying the filing fees and without submitting a completed application to proceed in forma pauperis, meaning without prepaying the fees, or a prisoner authorization. Federal law requires a prisoner who seeks this status to provide authorization for deductions from the prison account and certified account statements for the prior six months. If the court grants the application, the $350 filing fee is collected in installments. The $52 administrative fee does not apply to a person granted this status.
Order
The court ordered Smith, within 30 days of August 29, 2023, to do one of two things: pay $402 in fees, consisting of a $350 filing fee and a $52 administrative fee, or submit the attached application and prisoner authorization. The documents were to be labeled with docket number 23-CV-7613 (LTS).
No summons was to issue at that time. The order states that, if Smith complied, the case would be processed under the Clerk’s Office procedures. If he failed to comply within the allowed period, the action would be dismissed. The order also cautioned that a later dismissal for frivolousness, maliciousness, or failure to state a claim could count as a statutory “strike” affecting a prisoner’s ability to proceed without prepaying fees in future federal civil actions.
Ruling and classification
Judge Laura Taylor Swain issued an order directing payment of fees or submission of the required application and authorization. She also certified that an appeal from the order would not be taken in good faith and denied permission to appeal without prepaying fees. The opinion does not decide the merits of Smith’s underlying claims or address the defendants’ positions. This is a procedural order concerning filing requirements and permission to proceed without prepaying fees.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.