Dubarry v. Capra

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DARIUS DUBARRY; HARRY RIVERA; JAYQUAN GRIFFIN, 21-CV-5487 (LTS) Plaintiffs, ORDER DIRECTING PAYMENT OF FEE -against- OR IFP APPLICATION AND PRISONER AUTHORIZATION MICHAEL CAPRA, Defendant. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiffs, currently incarcerated at Sing Sing Correctional Facility, bring this action pro se. To proceed with a civil action in this Court, a prisoner must either pay $402.00 in fees – a $350.00 filing fee plus a $52.00 administrative fee – or, to request authorization 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. See 28 U.S.C. § 1915(b)(1). A prisoner seeking to proceed in this Court without prepayment of fees must therefore 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 fee1 from the prisoner’s account in installments and to send to the Court certified copies of the prisoner’s account statements for the past six months. See 28 U.S.C. § 1915(a)(2), (b).

1 The $52.00 administrative fee for filing a civil action does not apply to persons granted IFP status under 28 U.S.C. § 1915. The complaint was submitted without the filing fees or a completed IFP application and prisoner authorization from Darius Dubarry and Harry Rivera. Plaintiff Jayquan Griffin submitted an IFP application and prisoner authorization, but the prisoner authorization directs that payment be made to the Eastern District of New York. Within thirty days of the date of this

order, Plaintiffs must either pay the $402.00 in fees or each submit the attached IFP application and prisoner authorization forms. If Plaintiffs submit the IFP applications and prisoner authorizations, they should be labeled with docket number 21-CV-5487 (LTS).2 The Clerk of Court is directed to mail a copy of this order to Plaintiffs and note service on the docket. No summons shall issue at this time. If Plaintiffs comply with this order, the case shall be processed in accordance with the procedures of the Clerk’s Office. If Plaintiffs fail to comply with this order within the time allowed, the action will be dismissed without prejudice. 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 in forma pauperis 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: June 23, 2021 New York, New York

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

2 Plaintiff is cautioned that if a prisoner files an action that is dismissed as frivolous, malicious, or for failing to state a claim, the dismissal is a “strike” under 28 U.S.C. § 1915(g). A prisoner who receives three “strikes” cannot file actions in forma pauperis as a prisoner, unless he is under imminent danger of serious physical injury, and must pay the filing fee at the time of filing any new action.