Akinlawon v. Hochul

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK AYOTUNJI AKINLAWON, Plaintiff, 24-CV-8529 (LTS) -against- ORDER DIRECTING UPDATED PRISONER AUTHORIZATION GOVERNOR KATHY HOCHUL, ET AL., Defendants. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff, who is currently incarcerated at Clinton Correctional Facility, brings this action pro se.1 To proceed with a civil action in this Court, a prisoner must either pay $405.00 in fees – a $350.00 filing fee plus a $55.00 administrative fee – or, to request permission to proceed in forma pauperis (“IFP”), that is, without prepayment of fees, submit a signed IFP application and a prisoner authorization. See 28 U.S.C. §§ 1914, 1915. If the Court grants a prisoner’s IFP application, the Prison Litigation Reform Act requires the Court to collect the $350.00 filing fee in installments deducted from the prisoner’s account.2 See 28 U.S.C. § 1915(b)(1). A prisoner seeking to proceed in this Court without prepayment of fees must therefore also authorize the Court to withdraw these payments from his account by filing a “prisoner authorization,” which directs the facility where the prisoner is incarcerated to deduct the $350.00 filing fee from the

1 Plaintiff originally filed this action in the United States District Court for the Northern District of New York. See Akinlawon v. Hochul, No. 9:24-CV-1191 (N.D.N.Y. filed Sept. 27, 2024). By order dated November 6, 2024, Judge Glenn T. Suddaby of the Northern District severed Plaintiff’s claims arising at Fishkill Correctional Facility against Defendants Stacy and Mayes, and transferred those claims to this court. (ECF 5, at 11-13.) 2 The $55.00 administrative fee for filing a civil action does not apply to persons granted IFP status under 28 U.S.C. § 1915. prisoner’s account in installments and to send to this Court certified copies of the prisoner’s account statements for the past six months. See 28 U.S.C. § 1915(a)(2), (b). Although Plaintiff was granted leave to proceed IFP in the Northern District of New York, the severed claims transferred to this court constitute a new civil action. See Wausau Bus.

Ins. Co. v. Turner Const. Co., 204 F.R.D. 248, 250 (S.D.N.Y. 2001) (“[S]evered claims become entirely independent actions to be tried, and judgment entered thereon, independently.” (internal quotation marks and citation omitted)). Plaintiff therefore must either pay the filing fees or seek IFP status for this new action. See Abreu v. Brown, No. 18-CV-1634 (CM), 2018 WL 10125142, at *1 (S.D.N.Y. Mar. 16, 2018) (holding severed claims constitute a new action and requiring plaintiff to pay the fees or submit an IFP application). Plaintiff submitted to the Northern District an IFP application and a prisoner authorization, but the prisoner authorization only allows the funds deducted from the Plaintiff’s prison account to be disbursed to the United States District Court for the Northern District of New York. Within 30 days of the date of this order, Plaintiff must either pay the $405.00 in fees

or complete and submit the attached prisoner authorization. If Plaintiff submits the prisoner authorization, it should be labeled with docket number 24-CV-8529 (LTS).3 No summons shall issue at this time. If Plaintiff complies with this order, the case shall be processed in accordance with the procedures of the Clerk’s Office. If Plaintiff fails to comply with this order within the time allowed, the action will be dismissed.

3 Plaintiff is cautioned that if a prisoner files a federal civil action that is dismissed as frivolous or malicious, or for failure to state a claim on which relief may be granted, the dismissal is a “strike” under 28 U.S.C. § 1915(g). A prisoner who receives three “strikes” cannot file federal civil actions IFP as a prisoner, unless he is under imminent danger of serious physical injury, and must pay the filing fees at the time of filing any new action. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444–45 (1962) (holding that appellant demonstrates good faith when seeking review of a nonfrivolous issue).

SO ORDERED. Dated: November 13, 2024 New York, New York

/s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge