Salmon v. Cahill

Filing 27

ORDER: The defendant's motion 14 to vacate the order granting in forma pauperis status and seeking security for costs is DENIED. The plaintiff's motion 19 for assistance is DENIED as moot, his motion 20 for appointment of counsel is DENIED without prejudice and his motion 22 to amend is DENIED. Signed by Judge Stefan R. Underhill on 3/16/2015. (Pollack, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

MARVIN SALMON,
Plaintiff,
v.
CAPTAIN CAHILL,
Defendant.

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CASE NO. 3:14-cv-915 (SRU)

RULING ON PENDING MOTIONS
The defendant, Captain Cahill, has filed a motion to vacate the Court’s order granting the
plaintiff in forma pauperis status and to require the plaintiff to provide security for costs in this
case. The plaintiff, Marvin Salmon, has filed motions seeking assistance in obtaining service
copies, appointment of counsel and leave to amend his complaint. For the reasons that follow,
all of the motions are denied.
I.

Motion to Vacate and Motion for Security for Costs [Doc. #14]
The defendant moves to vacate the order granting the plaintiff in forma pauperis status

and to require the plaintiff to provide security for costs in this case. The defendant states that the
plaintiff misrepresented his assets on his in forma pauperis application and deliberately spent
money deposited to his inmate account on non-essential items rather than saving it for the filing
fee.
The plaintiff declared under penalty of perjury that he had not received any money in the
form of gifts or from other sources in the twelve months preceding the date of the application.
See Doc. #2 at 2-3. A review of his inmate account statement, however, shows four large
deposits totaling $550.00 in the three months before the plaintiff commenced this action. Thus,
the plaintiff made false statements in his application.

In opposition to the defendant’s motion, the plaintiff states that he relied on other inmates
and believed that he qualified for in forma pauperis status because, at no time did he have
$400.00 in his inmate account to pay the filing fee. The account statement shows that the
plaintiff immediately spent the money he received. This appears to be the first federal case the
plaintiff has filed.
A misrepresentation of financial assets is not necessarily fatal to a plaintiff’s claims. See
Morales v. E.I. Du Pont De Nemours & Co., No. 02-CV-786A(F), 2004 WL 2106590, at *2
(W.D.N.Y. Sept. 21, 2004). Although 28 U.S.C. § 1915(e)(2)(A) included mandatory language
requiring the court to dismiss a case if the plaintiff’s allegations of poverty are untrue, dismissal
is addressed to the discretion of the district court and is considered a harsh remedy which should
be reserved for the most serious cases. See Hobbs v. County of Westchester, No. 00 Civ.
8170(JSM), 2002 WL 868269, at *1 (S.D.N.Y. May 3, 2002). Dismissal is appropriate,
however, when a plaintiff “misrepresents [his or] her financial arrangements in bad faith to
obtain IFP status.” Cuoco v. U.S. Bureau of Prisons, 328 F. Supp. 2d 463, 467 (S.D.N.Y. 2004).
In light of the plaintiff’s unfamiliarity with federal litigation or the in forma pauperis system, the
Court concludes that the plaintiff did not act in bad faith.
Rather than dismissal, the defendant seeks revocation of in forma pauperis status. He
argues that the plaintiff had deposits of $950.00 to his trust account during the seven months
prior to filing this action. On November 25, 2013, the plaintiff had a balance of $389.87 in his
account. On April 16, 2014, the balance rose to $365.94. At no point did he have the $400.00
required to pay the filing fee and for most of the time the balance was less than $250.00. The
plaintiff states that he sought in forma pauperis status because he understood that to be the
proper procedure if he did not have the entire filing fee. The plaintiff also states that he does not
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know when deposits will be made to his account or in what amount. The trust account statement
supports this assertion. Although the plaintiff could have resisted his immediate purchase of
non-essential items from the commissary and saved his money to prepay the filing fee, in light of
the court’s determination that the plaintiff did not act in bad faith, it will not now vacate the
order granting in forma pauperis status.
II.

Motion for Assistance [Doc. #19]
The plaintiff states that the copy machine at his correctional facility is broken and seeks

assistance in making service copies of documents he will file in this case. The plaintiff is
confined at the Cheshire Correctional Institution. Since February 17, 2015, Cheshire Correctional
Institution fully participates in the prisoner e-filing program. As an inmate at a participating
facility, the plaintiff is no longer required to serve copies of the documents he files on the
defendants. When the plaintiff filed a document, defendant’s counsel receives a Notice of
Electronic Filing which constitutes service of the document on the defendant. Accordingly, the
plaintiff no longer requires service documents and his motion is denied as moot.
III.

Motion for Appointment of Counsel [Doc. #20]
The plaintiff seeks appointment of pro bono counsel in this case pursuant to 28 U.S.C. §

1915. The Second Circuit repeatedly has cautioned the district courts against the routine
appointment of counsel. See, e.g., Ferrelli v. River Manor Health Care Center, 323 F.3d 196,
204 (2d Cir. 2003); Hendricks v. Coughlin, 114 F.3d 390, 396 (2d Cir. 1997). The Second Circuit
has made clear that before an appointment is even considered, the indigent person must
demonstrate that he is unable to obtain counsel. Saviano v. Local 32B-32J, 75 F. App’x 58, 59
(2d Cir. 2003) (quoting Cooper v. A Sargenti Co., 877 F.2d 170, 173 (2d Cir. 1989)).
Although the plaintiff states that he requires legal assistance, the Court notes that the
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complaint was drafted by Attorney Michael Rubino, Jr., from Inmates’ Legal Assistance
Program. The plaintiff has provided no information suggesting that Inmates’ Legal Assistance
Program will not continue to provide legal assistance in this case. Accordingly, the plaintiff’s
motion for appointment of counsel is denied without prejudice.
IV.

Motion for Leave to Amend [Doc. #22]
The original complaint consists of four pages and clearly sets forth the plaintiff’s claim

against Captain Cahill for failure to protect him from harm at the hands of another inmate. The
proposed amended complaint consists of ninety-one pages and includes replies to discovery
responses.
A complaint need only contain a short and plain statement of the claim. Fed. R. Civ. P.
8(a). The original complaint does that. An amended complaint should clarify or amplify the
original cause of action. See Klos v. Haskell, 835 F. Supp. 710, 715 n.3 (W.D.N.Y. 1993), aff’d,
48 F.3d 81 (2d Cir. 1995). In support of his motion, the plaintiff states that he wishes to present
evidence to support his claims. Allowing the plaintiff to file this amended complaint will not
clarify this action. Accordingly, leave to amend is denied. The plaintiff can present his evidence
on a motion for summary judgment, if one is filed in this case, or at trial.
The plaintiff also states that he wishes to change his selection of a court trial to a jury trial.
In the original complaint, the plaintiff included a jury demand. Thus, no change is required.
V.

Conclusion
The defendant’s motions to vacate the order granting in forma pauperis status and seeking

security for costs [Doc. #14] is DENIED. The plaintiff’s motion for assistance [Doc. #19] is
DENIED as moot, his motion for appointment of counsel [Doc. #20] is DENIED without
prejudice and his motion to amend [Doc. #22] is DENIED.
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SO ORDERED this 16th day of March 2015, at Bridgeport, Connecticut.

/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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