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Nelson v. Helmick

United States District Court, W.D. New York

August 23, 2017

JEFFREY A. NELSON, Plaintiff,
v.
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.

          ORDER

          Michael A. Telesca United States District Judge.

         INTRODUCTION

         Plaintiff, 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.)[1] 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.)

         Because 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).

         DISCUSSION

         A. COMPLAINT

         As 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.”).

         Accordingly, 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.

         B. Application to Proceed In Forma Pauperis

         A party commencing a civil action in this Court ordinarily must pay a $350.00 filing fee as well as a $50.00 administrative fee.[2] See 28 U.S.C. § 1914; Judicial Conference Schedule of Fees, District Court Miscellaneous Fee Schedule;[3] Western District of New York, District Court Schedule of Fees.[4] 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.

         I. Requirements for In Forma Pauperis Application

         The 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.

         A. Supporting Affidavit or Affirmation

         Under 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 ...


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