AMENDED PLAN FOR THE DISPOSITION OF PRO SE CASES
Adopted September 30, 2015
OBJECTIVE
Cases filed by pro se litigants comprise a sizable portion of the Court's civil caseload.
The majority of these are complaints and petitions filed by inmates in state institutions. These
include both civil rights complaints and habeas corpus petitions.
In recognition of the size of the pro se caseload, it is the purpose of this Amended Plan
for the Disposition of Pro Se Cases ("the Plan") to establish efficient and uniform procedures for
handling pro se cases in the Western District of New York. This Plan promotes early judicial
intervention and coordinates the responsibilities of the Clerk's Office and the Pro Se Litigation
Unit to ensure orderly disposition of prose cases. It is contemplated that the case management
procedures set forth herein will uniformly be followed in all pro se cases.
Critical to this Plan's success is the implementation of standard orders intended to
facilitate the management of pro se cases. A set of standardized forms for use in pro se cases
shall be adopted, and amended as necessary, to facilitate implementation of the Plan. It shall be
the responsibility of the Pro Se Litigation Unit to ensure that these forms are consistently
updated when warranted by case law, statute, or local rule.
COMPOSITION AND SUPERVISION OF THE PRO SE LITIGATION UNIT
1. The Pro Se Litigation Unit shall be staffed by pro se staff attorneys (the number
to be determined pursuant to the Administrative Office staffing formula); a pro se paralegal and
support staff assigned by the Court; and any additive and court law clerk positions approved by
the Administrative Office.
2. The Pro Se Litigation Unit is an adjunct of the Court and, therefore, its operation
and supervision shall be administered by the Chief Judge.
3. The Special Counsel to the Chief Judge, designated by the Chief Judge, shall be
responsible for the day-to-day management and supervision of the other attorneys and staff in the
Pro Se Litigation Unit, unless otherwise stated.
I. MANAGEMENT OF PRO SE CASES
A. Prisoner Litigation and the Effect of the PLRA
1. The Prison Litigation Reform Act ("PLRA"), enacted on April 26, 1996,
significantly affects civil actions or appeals brought by inmates in state and federal institutions.
Changes made by the PLRA include, inter alia, (a) a requirement that the inmate first exhaust
administrative remedies; (b) a requirement that even when the inmate is granted the right to
proceed in forma pauperis, the inmate may nevertheless be required to pay the full filing fee,
either in a lump sum or in installments subsequent to payment of an initial partial filing fee; and
(c) the imposition of a sanction where an inmate has had three previous cases which were
dismissed on grounds of frivolity, maliciousness, failure to state a claim upon which relief can be
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granted, or because the inmate sought monetary relief from a defendant who was immune from
such a suit.
2. Accordingly, the Court has developed a Notice which shall be included in the
pack of forms sent in response to an inmate's request. This Notice informs the inmate of the
PLRA, and advises the inmate of the exhaustion requirement, the requirement that the filing fee
must be paid for each civil action commenced by the inmate, and the sanction for exceeding the
statutory number of dismissals for the above-listed causes.
3. The Court also has developed an Authorization Form by which the inmate may
authorize the institution at which the inmate is confined to provide the Court with financial
information and fees . If the inmate wishes to proceed as a poor person, the signed Authorization
must be returned with the completed complaint and the inmate' s informa pauperis motion and
supporting affidavit. If the inmate fails to provide the signed Authorization (or payment of the
entire filing fee), the case will be dismissed without prejudice.
4. The Court has entered an Administrative Order, which separately sets forth the
obligations of the Clerk of Court and the federal , state, or local agency having custody of the
inmate. The Administrative Order directs that the Clerk of Court transmit the inmate's signed
Authorization, together with a copy of the Administrative Order, to the federal, state, or local
agency having custody of the inmate. The Clerk of Court also is directed to demand in writing
from such custodian that the custodian calculate and promptly remit to the Court from monies
held by the custodian for the account of the inmate (a) the partial filing fee mandated by the
PLRA and the Administrative Order, together with (b) a certified copy of the statement for the
past six months of the inmate's account and (c) a statement of the calculations used to determine
the amount of the partial filing fee, copies of which the custodian must also furnish to the inmate.
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If the custodian initially remits only a partial filing fee on behalf of the inmate in accordance
with 28 U.S.C. § 1915(b), as amended, the custodian also is required to remit to the Clerk any
remaining unpaid fees in the matter described in the statute and the Administrative Order.
5. The Court will not consider the merits of any pro se complaint from an inmate
unless ( 1) either the full filing fee is paid contemporaneously with the filing of the complaint, or
(2) the inmate has been granted in forma pauperis status and has filed a duly executed
Authorization, as required by this Plan, providing for installment payments of the filing fee.
B. Prisoner Litigation and the Effect of the PLRA
1. All filed pro se cases shall be referred to the Pro Se Litigation Unit for initial
screemng. This screening includes reviewing complaints and petitions to determine whether the
plaintiff or petitioner has submitted sufficient copies and whether the forms are properly and
fully completed.
2. In addition, the Pro Se Litigation Unit shall review all civil actions from inmates
to determine whether the plaintiff has requested in forma pauperis status, and, if so, the Pro Se
Litigation Unit shall determine whether the inmate has submitted a completed motion to proceed
in forma pauperis, together with a supporting affidavit and the Authorization by which the
inmate authorizes the institution in which the inmate is confined to provide the Court with
financial information and the payment of the fees.
3. The Pro Se Litigation Unit shall determine whether the plaintiff/petitioner in a
newly filed case has previously filed other cases, either pending or closed, and, if so, to which
district judge or magistrate judge those cases were assigned. The Pro Se Litigation Unit shall
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promptly provide this information to the Clerk of Court to facilitate assignment of the case to a
district judge or magistrate judge following the case assignment procedure set forth below.
C. Case Assignment
1. By Order filed on March 2, 1996, this Court adopted a system for assigning prose
inmate actions brought under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2254 and 2255. That Order is
hereby amended, as set forth in this section.
2. The Clerk of Court shall, upon filing, randomly assign each pro se case to a
district judge. All cases filed by a pro se plaintiff/petitioner shall be assigned to the same district
judge and magistrate judge to whom the last case previously filed case by the same
plaintiff/petitioner had been assigned.
3. All pro se civil rights and habeas corpus petitions filed by inmates shall, upon
filing, be assigned to a district judge. The District's senior judges shall be assigned prisoner pro
se cases on any basis they choose.
4. At the time of filing of the pro se complaint/petition, the parties shall be informed
of their right to consent to final disposition of the case by the magistrate judge pursuant to 28
U.S.C. § 636(c), and provided with the requisite form for indicating their consent to proceed for
all purposes before a magistrate judge pursuant to 28 U.S.C. § 636(c). Plaintiff/Petitioner shall
return the executed forms to the Clerk of Court within 30 days and the defendant(s) shall do the
same at the time of entry of the defendant' s first appearance in the case. The Clerk of Court shall
maintain the confidentiality of the parties' decisions on the issue of consent, and shall not inform
any district judge or magistrate judge of the parties' responses unless all parties consent to such
disclosure.
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5. If all parties consent to jurisdiction by a magistrate judge, the Clerk of Court shall
prepare for the district judge' s signature an order ofreference pursuant to 28 U.S.C. § 636(c).
6. An appeal of any judgment entered by a magistrate judge pursuant to the consent
of the parties will be to the United States Court of Appeals for the Second Circuit.
7. This assignment shall be interpreted and enforced so as to fully protect the
voluntariness of the parties' consent and no judicial officer or court employee shall take any
action that implies that adverse consequences may result if the parties withhold consent.
D. Preparation of Initial Orders
1. After a pro se case is assigned to a district, the Pro Se Litigation Unit shall review
the file and prepare initial orders for signature by the assigned judge. Initial orders shall be
presented to the assigned judge within thirty (30) days of the case being docketed.
2. "Initial orders" contemplate, but are not limited to: orders staying proceedings
pending the plaintiffs pursuit ofremedies under the New York State Department of Correctional
Services Grievance Program; orders granting or denying permission to proceed in forma
pauperis; orders directing service of the complaint on behalf of the plaintiff/petitioner; orders
transferring venue of cases improperly filed in the Western District of New York; orders
dismissing habeas corpus petitions for failure to exhaust state court remedies or for abusing the
writ of habeas corpus; orders dismissing complaints by inmates for failure to exhaust available
administrative remedies or orders staying proceedings pending receipt of evidence that such
remedies have been exhausted or that there are no such remedies available; orders dismissing
claims as frivolous, malicious, failing to state a claim upon which relief may be granted, or
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seeking monetary relief from a defendant who is immune from such relief under 28 U.S.C. §
1915(e); orders dismissing § 1983 claims by inmates seeking damages for mental or emotional
injury without a prior showing of physical injury; and orders dismissing complaints for failure to
pay the full filing fee or providing a signed Authorization.
E. Case Summaries
Prior to delivering a pro se file to chambers, the Pro Se Litigation Unit shall complete
and attach to the file a short, concise case summary form. The purpose of the case summary is to
briefly inform the assigned district judge of the principal allegations, the current case status, and
whether the plaintiff/petitioner may have filed other cases with the Court. The case summary
shall not be filed with the Clerk and is not part of the official court file. The case summary form
must be updated and attached to the file each time the file is delivered to chambers by the Pro Se
Litigation Unit.
F. Requests for Appointment of Counsel
The Pro Se Litigation Unit shall review all initial motions for appointment of counsel in
pro se cases and shall prepare a form order for the Court's signature. If the initial motion is
denied, subsequent motions for appointment of counsel shall be referred to the district judge or
magistrate judge assigned to the case. All requests for appointment of counsel shall be reviewed
in light of the facts presented, the factors required by case law, and for a threshold showing of
merit, and shall be granted or denied as deemed appropriate in the exercise of the Court' s
discretion.
G. Scheduling Orders in Civil Rights Cases Brought by Inmates
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For each civil rights case brought by an inmate, the Pro Se Litigation Unit is responsible
for preparing a scheduling order for the signature of the assigned district judge or magistrate
judge. The Pro Se Litigation Unit shall review each civil rights case to ensure that a scheduling
order has been issued. The Pro Se Litigation Unit shall be responsible for tracking the dates of
each scheduling order to determine whether the case has been prosecuted consistent with the
scheduling order. If the plaintiff does not prosecute the case in accordance with the terms of the
scheduling order, the Pro Se Litigation Unit shall prepare an order to show cause for dismissal of
the complaint pursuant to Local Rule 41.2, as more fully described in Section K of this Plan.
H. Habeas Corpus Cases
The Pro Se Litigation Unit shall be responsible for preparing scheduling orders in habeas
corpus actions. Such orders shall be presented to the assigned district judge or magistrate judge
for signature within seven (7) days of the filing of the petition.
I. Non-Inmate Pro Se Cases
The Pro Se Litigation Unit shall prepare required initial form orders in, and track the
progress of, prose cases brought by persons other than inmates. The Pro Se Litigation Unit shall
be responsible for handling these cases as requested by the assigned district judge or magistrate
judge.
J. Monitoring Pro Se Cases
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1. All activity on pro se files shall be monitored by the Pro Se Litigation Unit
through a case management system which is accessible to all members of the Pro Se Litigation
Unit and each judge' s chambers. Calendar entries shall be made, inter alia, when a case is
opened, when the Pro Se Litigation Unit transmits a file to the assigned district judge or
magistrate judge, and when an order is signed and the file is returned to the Pro Se Litigation
Unit. Such a system shall provide a mechanism for better tracking the progress of cases and
location of case files .
2. The Pro Se Litigation Unit shall utilize this case management system for tracking
the progress of all events in the Court' s pro se cases. Entries on each newly filed case shall be
entered into the system as soon as it is received in the Pro Se Litigation Unit, and updated
whenever there is any activity on the file.
3. The Pro Se Litigation Unit also shall include on the case management system a
diary of all case deadlines in each pending pro se case. Where relevant, such as with respect to
service by the U.S. Marshal, the Pro Se Litigation Unit shall follow up to ensure that the action is
taken within the required time frame. The Pro Se Litigation Unit shall advise the chambers of
the assigned district judge or magistrate judge of all approaching deadlines.
4. When an order is signed directing service by the U.S. Marshal, the Pro Se
Litigation Unit shall be responsible for transmitting the order to the U.S. Marshal and following
up, if necessary, to ensure that service is effected within the proper time.
K. Dismissal for Failure to Prosecute
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The Pro Se Litigation Unit shall meet with or seek the approval of each of the district
judges and magistrate judges on a regular basis to determine whether orders to show cause
should issue pursuant to Local Rule of Civil Procedure 41.2. In the event that such orders to
show cause are issued, it shall be the responsibility of the Pro Se Litigation Unit to track and
review any responses received from plaintiffs in those cases. The Pro Se Litigation Unit shall
make recommendations to the Court as to whether particular responses are sufficient to preclude
dismissal for failure to prosecute. Dismissal orders in such cases, as well as in cases in which a
plaintiff failed to respond to a Local Rule 41.2 order to show cause, shall be prepared by the Pro
Se Litigation Unit and presented to the assigned district judge or magistrate judge for signature.
If the plaintiff's response warrants continuation of the action, the Pro Se Litigation Unit shall
prepare a scheduling order for further proceedings for signature by the assigned district judge or
magistrate judge. Such orders and recommendations shall be prepared with fourteen (14) days of
the response deadline set forth in the order to show cause.
II. ADDITIONAL RESPONSIBILITIES OF THE PRO SE LITIGATION UNIT
A. Research
The Pro Se Litigation Unit shall provide research assistance to district judges, magistrate
judges, and their law clerks by preparing reports based on relevant substantive law governing pro
se cases. These reports shall be updated at least quarterly and transmitted to each chambers with
sufficient copies for all personnel. Additionally, the Pro Se Litigation Unit shall be responsible
for reviewing Supreme Court and Second Circuit Court of Appeals slip opinions on a bi-weekly
basis. The Pro Se Litigation Unit shall promptly advise each chambers of any slip opinions
relevant to pro se matters.
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B. Contact with Pro Se Litigants
The Pro Se Litigation Unit shall serve as a liaison between the Court and prose litigants
with respect to matters that require specialized attention. Telephone calls and inquiries from pro
se litigants who seek general information, such as information contained on docket sheets, shall
be handled by the Clerk's Office staff. Those inquiries requiring more specific information shall
be referred to the Pro Se Litigation Unit.
C. Monitoring and Enforcement of Sanctions
1. It is this Court's policy to enforce orders imposing sanctions against pro se
litigants by this Court as well as by other federal district courts within the State of New York.
The collection of this information concerning sanctions, to the extent it is available, shall be the
responsibility of the Pro Se Litigation Unit. This information shall be collected at least monthly
from each of the other three districts within New York State and combined with the list of
litigants sanctioned in the Western District of New York. This list shall then be provided on a
regular basis to each chambers and to all the Clerk's Office intake personnel in order to provide
improved enforcement of sanctions in the district.
2. In addition, the Pro Se Litigation Unit is responsible for working together with the
pro se offices of the other three districts within New York State and the Second Circuit Court of
Appeals, in order to develop a state-wide system for identifying all sanctioned pro se litigants
and those inmates who have had cases dismissed for frivolity, maliciousness, failure to state a
claim on which relief may be granted, or for seeking monetary relief from a defendant immune
from such a suit, as described in 28 U.S.C. § 1915(e), as needed.
D. List of Assigned Counsel
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1. The Pro Se Litigation Unit shall develop, maintain, and regularly update a list of
attorneys within the district who have volunteered to accept pro bona assignments in civil cases.
This list shall include: the attorney's name, office address and telephone number, nature of
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practice, number of years in practice, date of federal court admission, and area of interest for pro
bona assignment. The list shall be transmitted to the Clerk' s Offices and to each district judge's
and magistrate judge' s chambers.
2. The Pro Se Litigation Unit and the Clerk' s Office shall take steps to promote
awareness of the District Court Fund which provides reimbursement of out-of-pocket expenses
incurred by attorneys who agree to represent indigent litigants on a pro bona basis.
III. EFFECTIVE DATE
The provisions of this amended Plan shall apply to all pro se cases filed on or after
January 1, 2016.
~~
MICHAELl\. TELESCA
Senior United States District Judge
c~9:1~
DAVIDG.LARIMER ~~
HARLES J, sr-'i;r
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Senior United States District Judge Senior United States District Judge
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