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Leitner v. Internal Revenue Service

United States District Court, Second Circuit

May 22, 2013

MARK-DANIEL LEITNER, Plaintiff,
v.
INTERNAL REVENUE SERVICE, Defendant.

ORDER

JOHN T. CURTIN, District Judge.

Plaintiff Mark-Daniel Leitner, a prisoner proceeding pro se, filed this case on April 29, 2013, as a miscellaneous action and submitted a payment of $46.00 for a filing fee. The complaint in the instant case is nearly identical to the civil action plaintiff previously attempted to file in 13-CV-6015CJS. Civil action 13-CV-6015CJS was administratively closed by Order dated March 28, 2013, because plaintiff's application to proceed in forma pauperis did not include a completed prison certification and authorization form as required by Order dated March 28, 2013.[1] Plaintiff did not provide the information required in 13-CV-6015CJS and that matter remains closed.

The instant case is also a civil action, and should not have been filed as a miscellaneous action. The action is converted to a civil action and shall be administratively closed.

In Forma Pauperis Application or Payment of Fee

In order for a prisoner to file a civil action, either a filing fee of $350.00 or a proper in forma pauperis application must be filed with the Court.[2] As plaintiff was previously advised in both 13-CV-6015CJS and 12-CV-6471CJS, if he wishes to proceed in forma pauperis while imprisoned he must submit a motion to proceed in forma pauperis that includes a completed and signed Prison Certification and a signed Prison Authorization authorizing the institution in which he is confined to pay the full amount of the $350.00 filing fee pursuant to 28 U.S.C. ยง 1915(b)(1)-(4).

For the reasons set forth above, plaintiff's miscellaneous filing is hereby converted to a civil action. The Clerk of the Court is ordered to administratively terminate the civil action without filing the complaint or assessing a filing fee. The civil action will be reopened upon either the payment of the full $350.00 filing fee or the filing of a motion to proceed in forma pauperis that includes a completed and signed Prison Certification and a signed Prison Authorization authorizing the institution in which he is confined to pay the full amount of the $350.00 filing fee within 30 days.[3] Further, the Clerk of the Court is directed to refund the $46.00 miscellaneous filing fee.

IT IS HEREBY IS ORDERED, that the Clerk of the Court shall convert this action from a miscellaneous action to a civil action and assign a civil action case number;

FURTHER, that the Clerk of the Court shall file all documents from 13-MC-6010CJS in the new civil action;

FURTHER, that the Clerk of the Court shall close 13-MC-6010CJS; and

FURTHER, that the Clerk of the Court shall refund the $46.00 submitted upon filing of the miscellaneous action;

FURTHER, that the Clerk of the Court shall administratively terminate the new civil action, without filing the complaint or assessing a filing fee;

FURTHER, that the Clerk of the Court is directed to send to plaintiff a form motion to proceed in forma pauperis and Prison Authorization Form;

FURTHER, that if plaintiff wishes to reopen this civil action, he shall so notify the Court, in writing, no later than 30 days after the date this order is signed; plaintiff's writing shall include either (1) a signed Prison Authorization and new motion to proceed in forma pauperis that includes a completed and signed Pnson Certification, or (2) the $350.00 filing fee;

FURTHER, that upon plaintiff's submission of either (1) a signed Prison Authorization and new motion to proceed in forma pauperis that includes a completed and signed Prison Certification, or (2) the #350.00 filing fee, the Clerk of the Court shall re-open this civil action.

SO ORDERED.


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