Perez v. Bryant

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK FELIPE PEREZ, Plaintiff, 20-CV-0079 (CM) -againstORDER E. BRYANT, et al., Defendants. COLLEEN McMAHON, Chief United States District Judge: Plaintiff brings this action pro se. By order dated January 8, 2020, the Court directed Plaintiff, who was then incarcerated in Sing Sing Correctional Facility, to either pay the $400 in fees required to bring a civil action in this Court, or, to proceed in forma pauperis (IFP), that is, without prepayment of fees, to submit an IFP application and a prisoner authorization. Because Plaintiff failed to file an IFP application and prisoner authorization or pay the fees, by order dated February 24, 2020, the Court dismissed the complaint without prejudice. See 28 U.S.C. §§ 1914 , 1915. On May 7, 2020, the Court received a letter from Plaintiff indicating that he is no longer incarcerated and providing his new address. (ECF No. 7.) His submission also included an IFP application and prisoner authorization. (ECF Nos. 5, 6.) Accordingly, the Court directs the Clerk of Court to vacate the February 24, 2020 order and judgment (ECF Nos. 3, 4), and to reopen this action. A. Order Directing Amended IFP Application Plaintiff proceeds pro se and was incarcerated in Sing Sing Correctional Facility when he filed this action. A plaintiff who qualifies under the Prison Litigation Reform Act (PLRA) as a prisoner when he files a complaint faces certain restrictions.1 See Gibson v. City Municipality of 1 Under the PLRA, a prisoner is “any person incarcerated or detained in any facility who N.Y., 692 F.3d 198, 201 (2d Cir. 2012) (“[T]he relevant time at which a person must be ‘a prisoner’ within the meaning of the PLRA in order for the Act’s restrictions to apply is ‘the moment the plaintiff files his complaint.’”) (citation omitted). A prisoner proceeding IFP, for example: (1) must pay the $350.00 filing fee in installments withdrawn from his prison trust fund account, 28 U.S.C. § 1915 (b)(1), and (2) can be disqualified from proceeding IFP, that is, without prepaying the filing fee, if he has previously filed three federal civil actions (or appeals), while he was a prisoner, that were dismissed as frivolous, malicious, or for failure to state a claim on which relief may be granted, 28 U.S.C. § 1915 (g) (the “three strikes” rule).2 Plaintiff was incarcerated at the time he filed the complaint in this action, but he did not submit an IFP application and prisoner authorization or pay the relevant filing fees to commence this action. The Court therefore dismissed the complaint without prejudice. Plaintiff now files an IFP application and prisoner authorization, but he is no longer incarcerated. Upon a prisoner’s release, “his obligation to pay fees is to be determined, like any non-prisoner, solely by whether he qualifies for [IFP] status.” McGann v. Comm’r of Social Security, 96 F.3d 28, 30 (1996). “A released prisoner may litigate without further prepayment of fees upon satisfying the poverty affidavit requirement applicable to all non-prisoners.” Id. Because Plaintiff is no longer in the custody of the New York State Department of Corrections and Community Supervision, his financial situation may have changed. The Court therefore directs that if Plaintiff wishes to prosecute this action and proceed IFP, he must submit is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or [a] diversionary program.” 28 U.S.C. § 1915 (h). 2 A plaintiff who was a prisoner at the time of filing the complaint is also required to have exhausted prison grievance remedies, 28 U.S.C. § 1997e(a). an amended IFP application within thirty days. Alternatively, Plaintiff may prepay $400.00 in relevant fees, which includes the $350.00 filing fee and a $50.00 administrative fee that applies to litigants who are not proceeding IFP. If Plaintiff fails to comply with this order within the time allowed, the action will be dismissed for failure to comply with this order, without prejudice to Plaintiff’s refiling the action. Even if Plaintiff’s release means that he “may litigate without further prepayment of fees,” id., his release does not change the fact that if he qualified as a prisoner at the time that he filed this action, then dismissal of this action for failure to state a claim, or as frivolous or malicious, could qualify as a strike for purposes of § 1915(g). Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so. Under Rule 41(b) of the Federal Rules of Civil Procedure, a district court may dismiss an action sua sponte for failure to prosecute after notifying the plaintiff. LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001); see Fields v. Beem, No. 13-CV-0005 (GTS)(DEP), 2013 WL 3872834 , at *2 (N.D.N.Y. July 24, 2013) (“A plaintiff is required to notify the Court when his address changes, and failure to do so is sufficient to justify dismissal of a plaintiff’s complaint.”) (collecting cases). CONCLUSION The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. The Clerk of Court is further directed to vacate the Court’s February 24, 2020 order and judgment (ECF Nos. 3, 4), and to reopen this action. The Court directs Plaintiff to submit an amended IFP application or pay the $400 in fees required to bring a civil action in this Court, within thirty days. 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 an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). SO ORDERED. Dated: June 2, 2020 New York, New York huh Wyk Chief United States District Judge UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK (Full name(s) of the plaintiff or petitioner applying (each person must submit a separate application) CV ( ) ( ) -against- (Enter case number and initials of assigned judges, if available; if filing this with your complaint, you will not yet have a case number or assigned judges.) (Full name(s) of the defendant(s)/respondent(s).) AMENDED APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS I am a plaintiff/petitionerin this case and declare that I am unable to pay the costs of these proceedingsand I believe that I am entitled to the relief requested in this action. In support of this applicationto proceed in forma pauperis(“IFP”) (without prepaying fees or costs), I declare that the responses below are true: 1. Are you incarcerated? Yes No (If “No,” go to Question 2.) I am being held at: Do you receive any payment from this institution? Yes No Monthly amount: If I am a prisoner, see28 U.S.C. §1915(h), I have attached to this document a “Prisoner Authorization” directing the facility where I am incarcerated to deduct the filing fee from my account in installments and to send to the Court certified copies of my account statements forthe past six months. See 28 U.S.C. §1915 (a)(2), (b). I understand that this means that I will be required to pay the full filing fee. 2. Are you presently employed? Yes No If “yes,” my employer’s name and address are: Gross monthly pay or wages: If “no,” what was your last date of employment? Gross monthly wages at the time: 3. In addition to your income stated above(which you should not repeat here), have you or anyone else living at the same residence as you received more than $200 in the past 12 months from any of the following sources? Check all that apply. (a) Business, profession, or other self-employment Yes No (b) Rent payments, interest, or dividends Yes No (c) Pension, annuity, or life insurance payments [] Yes [] No (d) Disability or worker’s compensation payments [] Yes [] No (e) Gifts or inheritances [] Yes [] No Any oth blic benefit ] t ial it (f) Any other public ene its (unemployment, social security, Yes No food stamps, veteran’s, etc.) (g) Any other sources [] Yes [] No If you answered “Yes” to any question above, describe below or on separate pages each source of money and state the amount that you received and what you expect to receive in the future. If you answered “No” to all of the questions above, explain how you are paying your expenses: 4. How much money do you have in cash or in a checking, savings, or inmate account? 5. Do you own any automobile, real estate, stock, bond, security, trust, jewelry, art work, or other financial instrument or thing of value, including any item of value held in someone else’s name? If so, describe the property and its approximate value: 6. Do you have any housing, transportation, utilities, or loan payments, or other regular monthly expenses? describe and provide the amount of the monthly expense: 7. List all people who are dependent on you for support, your relationship with each person, and how much you contribute to their support (only provide initials for minors under 18): 8. Do you have any debts or financial obligations not described above? Ifso, describe the amounts owed and to whom they are payable: Declaration: | declare under penalty of perjury that the above information is true. I understand that a false statement may result in a dismissal of my claims. Dated Signature Name (Last, First, MI) Prison Identification # {if incarcerated) Address City State Zip Code Telephone Number E-mail Address (if available) IFP Application, page 2