HENSLER v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION et al

Filing 3

OPINION. Signed by Judge Renee Marie Bumb on 7/14/16. (jbk, )

[Dkt. No. 1]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
AUDREY HENSLER,
Plaintiff,

Civil No. 16-3387 (RMB/KMW)
OPINION

v.
NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION; and
TAMARA A. GRECO,
Defendants.

Plaintiff Audrey Hensler (the “Plaintiff”) filed this
action and an associated request for a temporary restraining
order on June 10, 2016.

[Dkt. No. 1 (Complaint).]

The action

concerns, in essence, a challenge to a construction permit
decision made by Defendant Tamara Greco (“Ms. Greco”) in her
capacity as an employee of Defendant New York State Department
of Environmental Conservation (“NYSDEC,” and with Ms. Greco,
“Defendants”).

(Compl. at ¶ 24.)

Plaintiff has also filed an

application to proceed in forma pauperis.

[Dkt. No. 1-3.]

As

detailed below, the Court declines to order the filing of the
Complaint at this stage due to inconsistencies in Plaintiff’s
affidavit of indigence.

I.

APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES AND COSTS
This Court cannot approve Plaintiff’s Application to

Proceed In Forma Pauperis.

Plaintiff has completed the 1994

version of the short-form affidavit of indigence.

See 28 U.S.C.

§ 1915(a)(1) (A Court may grant pauper status to “a person who
submits an affidavit that includes a statement of all assets
such [person] possesses that the person is unable to pay such
fees or give security therefor.”); see also Severino III v.
Sayreville Police Dept., Civ. No. 07-546 (JLL), 2008 WL 975073,
at *1 (D.N.J. Apr. 9, 2008) (applying 28 U.S.C. § 1915(a)(1) to
non-prisoners).

While the use of this outdated form does not,

in and of itself, disqualify Plaintiff’s attempt to demonstrate
her indigence, inconsistencies between the scantily-detailed
affidavit and Plaintiff’s underlying allegations give this Court
pause with regard to whether the Court may direct the filing of
the Complaint.
According to her affidavit, Plaintiff is employed and makes
$300 dollars per week, however, she does not identify any
expenses she has on a monthly basis and does not indicate how
much she contributed to her two children’s support.

Plaintiff

also states that she does not have any cash on hand or a
checking account.

Despite this, the sum and substance of

Plaintiff’s case is that she seeks to build a single-family
home, through the use of a project engineer, on property that
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she owns and pays taxes on in Staten Island, New York.

Such an

action, without more information, seems, in this Court’s mind,
contradictory to Plaintiff’s indigence.
As such, the Court directs Plaintiff, if she elects to
proceed in forma pauperis in this Court, to file a more detailed
affidavit concerning her indigence.1
II.

APPROPRIATE VENUE
Due to the deficiencies of the Application to Proceed

Without Prepayment of Fees and Costs, this Court has yet to
screen the Complaint pursuant to 28 U.S.C. § 1915(e)(2).
Nevertheless, in a review of the Complaint, the Court has
identified an additional issue which should be considered by
Plaintiff prior to her filing of an amended application to
proceed in forma pauperis.
Specifically, this case strikes the Court as one
potentially more appropriately brought in the United States
District Court for the Eastern District of New York.

Plaintiff

is suing the New York State Department of Environmental
Conservation and one of its employees in regard to its treatment
of Plaintiff concerning zoning.

While Plaintiff is a resident

A short-form and long-form version of the Non-Prisoner
Application to proceed in District Court Without Prepaying Fees
or Costs is available on the United States District Court for
the District of New Jersey website:
http://www.njd.uscourts.gov/sites/njd/files/forms/AO-239.pdf.

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of New Jersey and has elected to file suit in the District of
New Jersey, that ultimately is not the only factor this Court
must consider in determining whether this is the proper venue.
See Jumara v. State Farm Ins. Co., 55 F.3d 873, 879-80 (3d Cir.
1995) (discussing the private and public interest factors
relevant to a determination of whether or not to transfer venue
pursuant to Section 1404(a)).

As such, the Court cautions

Plaintiff now that this Court, after the filing of her amended
application to proceed in forma pauperis and the serving of
Defendants, may additionally issue an order to show cause why
the case should not be transferred pursuant to 28 U.S.C. § 1404.

DATED: July 14, 2016
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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