United States District Court, W.D. New York
JEFFREY A. NELSON, Plaintiff,
SGT. JEFFREY HELMICK, C.O. JEFFREY BURRI, C.O. JEFFREY PAIGE, C.O. ROBERT MOTT, C.O. NICHOLAS LOCK, CASSANDRA L. HEYL, Correction Counselor C.C., NURSE. A. JESSICA B. BURNETT, O.M.H. UNIT CHIEF THOMAS SCHLEE, O.M.H. SOCIAL WORKER A. FORDAM, O.M.H. DOCTOR DADSON, LT. E DW ARD RIZZO, SUPERINTENDENT JOHN COLVIN, BRIAN HILTON, Executive Assistant Commissioner, Defendants.
Michael A. Telesca United States District Judge.
Jeffrey Nelson, an inmate of the Five Points Correctional
Facility's Regional Mental Health Unit, has filed a
self-styled “Motion-Memorandum for a[n] Immediate
Temporary Preliminary Injunction and a Temporary Restraining
Order” (“Motion”) asking the Court
“to stop the brutality that the [Defendants] are
continuously inflicting upon him” at Five Points RMHU.
(Docket No. 1, Motion.) Plaintiff did not file a complaint
along with his Motion and his enclosure letter to the Court
notes that he will file a complaint if his application to
proceed as a poor person (Docket No. 2) is granted and
“after receiving some kind of relief from the
brutality.” (Docket No. 1 at 29.)
Plaintiff has not filed a complaint as required to initiate a
civil action in this Court, see Fed. R. Civ. P. 3,
and because Plaintiff's application to proceed as a poor
person did not include a certification of his inmate trust
fund account (or institutional equivalent), this action will
be administratively terminated with the right to reopen upon
(1) the filing of a complaint seeking relief under 42 U.S.C.
§ 1983, and either (2) a properly
supported motion to proceed in forma pauperis along
with the required certification of the Plaintiff's inmate
trust fund account, or (3) payment of the $350.00 filing fee
and the $50.00 administrative fee ($400.00 total).
noted, Plaintiff has advised the Court that he will file a
complaint once the Court grants his application to proceed as
a poor person and after he receives some form of preliminary
injunctive relief. Rule 3 of the Federal Rules of Civil
Procedure unequivocally provides that “[a] civil action
is commenced by filing a complaint with the court.”
“Prior to the filing of a complaint a court lacks
subject matter jurisdiction and is powerless to grant
preliminary injunctive relief.” Williams v. State
Univ. of N.Y., 635 F.Supp. 1243, 1246 (E.D.N.Y. 1986)
(citing Stewart v. United States Immigration and
Naturalization Service, 762 F.2d 193, 198 (2d Cir.
1985); see also Oba v. Goord, 180 F.R.D. 244
(W.D.N.Y.) (Siragusa, J.) (“Without the prerequisite of
a filed complaint, this court is without jurisdiction to
entertain any motions for preliminary relief.”).
this action must be administratively terminated with the
right to reopen, as directed below, and Plaintiff's
Motion is denied without prejudice to refiling upon the
reopening of this action.
Application to Proceed In Forma Pauperis
commencing a civil action in this Court ordinarily must pay a
$350.00 filing fee as well as a $50.00 administrative
See 28 U.S.C. § 1914; Judicial Conference
Schedule of Fees, District Court Miscellaneous Fee
Schedule; Western District of New York, District
Court Schedule of Fees. If a “prisoner” (as defined
in 28 U.S.C. § 1915(h)) wishes to commence a civil
action, the prisoner must either (1) pay those fees or (2)
obtain permission to proceed in forma pauperis,
pursuant to 28 U.S.C. § 1915.
Requirements for In Forma Pauperis
Prison Litigation Reform Act of 1995, Pub. L. No. 104-134,
110 Stat. 1321 (April 26, 1996), which amended 28 U.S.C.
§ 1915, established certain requirements that a prisoner
must meet in order to proceed in forma pauperis.
Those requirements are summarized below.
Supporting Affidavit or Affirmation
28 U.S.C. § 1915(a)(1), a prisoner seeking to bring a
civil action in forma pauperis must submit an
affidavit or affirmation detailing the prisoner's assets
and liabilities and swearing under oath that the prisoner is
unable to pay the $350.00 filing fee. A motion to proceed
in forma pauperis should be supported by such an
affidavit or affirmation filed at the same time as the
complaint. The United States District Court for the Western
District of New York has made available a form motion to
proceed in forma pauperis ...