Opinion
21-CV-0527 (CM)
01-28-2021
FRANKLIN LOVING, Plaintiff, v. JOHN AND JANE DOE, M.D.; SUPERINTENDENT, DOWNSTATE CORRECTIONAL FACILITY, Defendants.
ORDER :
On December 29, 2020, the Court received an application from Plaintiff Franklin Loving, asserting claims under 42 U.S.C. § 1983 in connection with his medical examination during the intake process when he arrived at Downstate Correctional Facility in January 2019. The Court opened that matter as a civil rights complaint under docket number 20-CV-11135. On January 5, 2021, the Court directed Plaintiff to pay the filing fees for that matter or submit an application to proceed in forma pauperis (IFP) and prisoner authorization, which the Court specified should be labeled with the docket number 20-CV-11135.
On January 11, 2021, Plaintiff returned the IFP application and prisoner authorization, which are stamped at the top with the docket number 20-CV-11135, together with a new complaint again asserting claims arising from Plaintiff's medical examination during the intake process at Downstate Correctional Facility in January 2019. These documents were opened as a new action under this docket number, 21-CV-0527.
It appears that Plaintiff submitted this IFP application and prisoner authorization form in response to the Court's January 5, 2021 order in 20-CV-11135. Moreover, because this complaint raises the same claims as the complaint in 20-CV-11135, no useful purpose would be served by treating the complaint as a new action. The Court therefore directs the Clerk of Court to: (1) refile the IFP application and prisoner authorization docketed in 21-CV-0527 (ECF Nos. 1, 3), in Plaintiff's pending action 20-CV-11135 (CM); (2) file the complaint from 21-CV-0527 (ECF No. 2) as an amended complaint in 20-CV-11135 (CM); and (3) administratively close this action (21-CV-0527).
Because it appears that this new action was opened in error, the Clerk of Court shall not charge Plaintiff the $350.00 filing fee for this action (21-CV-0527), and the Superintendent having custody of Plaintiff shall not encumber funds from his trust account for this lawsuit.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. The Court further directs the Clerk of Court to: (1) refile the IFP application and prisoner authorization docketed in 21-CV-0527 (ECF Nos. 1, 3), in Plaintiff's pending action 20-CV-11135; (2) refile the complaint, 21-CV-0527 (ECF No, 2), as an amended complaint in 20-CV-11135; and (3) administratively close this action. A copy of this order shall also be docketed in 20-CV-11135 (CM), and all further documents related to this matter shall be filed under that docket number.
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 in forma pauperis 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). Dated: January 28, 2021
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge