Conseillant v. Physician
- Laura Swain
- 1:23-cv-06386
- U.S. District Court · Southern District of New York
- 7
In Conseillant v. Povilon, Judge Swain ordered Frantz Conseillant to pay $402 or explain why he qualifies to proceed without fees under the prisoner filing rule.
Frantz Conseillant’s ability to continue this case without paying the filing fee is affected. He was given 30 days to pay $402 or submit a declaration seeking the imminent-danger exception; otherwise, the court stated that it would dismiss the action without prejudice. The defendants were not subject to a merits ruling in this order.
What happened
In Conseillant v. Povilon, Frantz Conseillant, who was held at the Anna M. Kross Center when he filed the case, asked to proceed without paying filing fees. He alleged problems involving his mental-health status, swollen feet, a prior gunshot wound, and health risks.
The court said Conseillant had at least three prior qualifying dismissals under the Prison Litigation Reform Act’s filing rule. It found that his allegations did not show an immediate danger of serious physical injury connected to his claims when he filed the complaint. The court ordered him within 30 days either to pay $402 or submit a declaration explaining why an exception allows him to proceed without fees. It did not dismiss the case in this order, but stated that it would dismiss the case without prejudice if he did not pay, respond, or show cause.
Judge Laura Taylor Swain also certified that an appeal would not be taken in good faith and denied fee-free status for an appeal. The order was procedural and did not decide whether Conseillant’s underlying allegations were legally valid.
The detailed version
- Conseillant v. Physician · No. 1:23-cv-06386
- Laura Swain
- Oct. 10, 2023
Background
Frantz Conseillant filed the complaint while he was held at the Anna M. Kross Center on Rikers Island. He sought permission to proceed without paying filing fees, a status commonly called proceeding in forma pauperis, or “IFP.” He appeared without a lawyer.
The order states that Conseillant had earned at least three prior “strikes” before filing this action. Under the Prison Litigation Reform Act, or PLRA, a prisoner who has three or more qualifying prior cases or appeals dismissed as frivolous, malicious, or for failure to state a claim generally cannot proceed without paying the filing fee. The exception applies when the prisoner was under an imminent danger of serious physical injury when the complaint was filed.
Alleged Imminent Danger
The court considered four circumstances described by Conseillant: a “level one” mental-health designation; swollen feet and an alleged failure by Physician Povilon to examine them; a gunshot wound to Conseillant’s left hand on April 2, 2023; and unspecified allegations involving physical violence, HIV/AIDS, and Hepatitis B and C.
The court concluded that these allegations did not sufficiently show an imminent danger of serious physical injury on July 1, 2023, when Conseillant submitted the complaint for filing. The court also concluded that Conseillant had not shown the required connection between any imminent danger and the claims in this action—meaning that the alleged danger had to be linked to unlawful conduct asserted in the complaint and potentially addressed by a favorable judgment.
Order
The court directed Conseillant to do one of two things within 30 days: pay $402 in filing fees or submit a declaration showing why he qualifies for the PLRA’s imminent-danger exception and may proceed IFP. This was an opportunity to respond before a final unfavorable decision. The court stated that, if Conseillant failed to pay, failed to show cause, or failed to respond on time, it would dismiss the action without prejudice as barred by the PLRA’s three-strikes rule.
The order therefore did not dismiss the action at that time and did not decide the merits of Conseillant’s underlying allegations. Separately, the court certified that an appeal from the order would not be taken in good faith and denied IFP status for purposes of an appeal.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.