Kelly v. Miller

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK SHYTIQUE KELLY, Plaintiff, 25-CV-6763 (LTS) -against- ORDER DIRECTING PAYMENT OF FEE OR IFP APPLICATION AND PRISONER MARK MILLER, AUTHORIZATION Defendant. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff Shytique Kelly is currently incarcerated at Eastern New York Correctional Facility. On February 13, 2025, he filed this action pro se in the United States District Court for the Northern District of New York. On August 11, 2025, the Northern District severed Plaintiff’s claims arising at Green Haven Correctional Facility against Miller and transferred those claims to this court.1 (ECF 7.) 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 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

1 The Northern District of New York granted Plaintiff’s request to proceed in forma pauperis (“IFP”). The claims that were severed and opened as a new action in this district require a separate filing fee or order granting IFP status. See, e.g., Wausau Bus. Ins. Co. v. Turner Const. Co., 204 F.R.D. 248, 250 (S.D.N.Y. 2001) (holding that “severed claims become entirely independent actions to be tried, and judgment entered thereon, independently.”). 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). 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 fee2 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). Within thirty days of the date of this order, Plaintiff must either pay the $405.00 in fees or submit the attached IFP application and prisoner authorization forms. If Plaintiff submits the IFP application and prisoner authorization, they should be labeled with docket number 25-CV-6763 (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. 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.

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. 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. 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: August 21, 2025 New York, New York

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