O'Day, et al v. Nassau County, et al

Filing 354

ORDER denying 345 Motion for Leave to Appeal in forma pauperis: Bloch's request to proceed in forma pauperis on her interlocutory appeal is denied. See attached. Ordered by Senior Judge Denis R. Hurley on 9/29/2010. (Chambers mailed copy of Order to movant.)

-ARL O'Day, et al v. Nassau County, et al

Doc. 354

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------X In re NASSAU COUNTY STRIP SEARCH CASES, ------------------------------------------------------X APPEARANCES: For Plaintiffs: Giskan Solotaroff Anderson & Stewart LLP 11 Broadway, Suite 2150 New York, New York 10004 By: Robert L. Herbst, Esq. Oren Giskan, Esq. Beldock Levine & Hoffman LLP 99 Park Avenue, Suite 1600 New York, New York 10016 By: Vera M. Scanlon, Esq. Emery Celli Brinckerhoff & Abady LLP 75 Rockefeller Plaza, 20th Floor New York, New York 10019 By: Matthew Brinckerhoff, Esq. Mariann Wang, Esq. Wolf Haldenstein Adler Freeman & Herz LLP 270 Madison Avenue New York, New York 10016 By: Jeffrey G. Smith, Esq. Martin Restituyo, Esq. For Defendants: Nassau County Attorney One West Street Mineola, New York 11501 By: Dennis J. Saffran, Esq. Liora Ben-Sorek, Esq. For Movant: Marilyn Bloch, Pro Se 79-58 Pines Blvd., Suite 222 Pembroke Pines, Fla. 33024 MEMORANDUM AND ORDER 99-CV-2844(DRH)

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HURLEY, Senior District Judge: By Order dated April 23, 2010, the Court denied the application of Marilyn Bloch ("Bloch"), proceeding pro se, to become a named plaintiff in this class action. Subsequent to that Order, the Court received additional materials relating to that application from Bloch (see Dkt. Nos. 327-329, 337), which the Court construed as a request for reconsideration and denied by Order dated June 7, 2010. Bloch now requests permission to proceed in forma pauperis on her interlocutory appeal to the Second Circuit. For the reasons that follow, the application is denied. DISCUSSION I. Standard of Review A motion to proceed in forma pauperis on appeal must be made in the first instance to the district court. See Fed. R. App. P. 24(a). An appeal may not be taken in forma pauperis if the district court certifies that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(4)(B). The Second Circuit has instructed: Generally an application for leave to appeal in forma pauperis will have sufficient substance to warrant consideration only if, in addition to an adequate showing of indigence and of citizenship, it identifies with reasonable particularity the claimed errors which will be the basis for the appeal. If these requirements are satisfied, and if on consideration the trial judge is conscientiously convinced that there is no substantial question for review and that an appeal will be futile, or if he is convinced that there is no reasonable basis for the claims of alleged error, it is the duty of the trial judge, albeit not a pleasant duty, to certify that the appeal is not taken in good faith. United States v. Farley, 238 F.2d 575, 576 (2d Cir. 1956) (internal citations and quotation marks omitted). "`This threshold level for permitting persons to proceed in forma pauperis is not very great and doubts about the substantiality of the issues presented should normally be resolved in

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the applicant's favor.'" Bishop v. Henry Modell & Co., 2010 WL 1790385, at *1 (S.D.N.Y. May 4, 2010) (quoting Miranda v. United States, 458 F.2d 1179, 1181 (2d Cir. 1972)). "Nevertheless, `good faith is judged by an objective standard, and if an appeal is frivolous it is not taken in good faith.'" Bishop, 2010 WL 1790385, at *1 (quoting Gomez v. United States, 371 F. Supp. 1178, 1179 (S.D.N.Y. 1974)). II. Bloch's Request to Appeal In Forma Pauperis is Denied Here, Bloch's application to proceed in forma pauperis does not include any of the "the claimed errors which will be the basis for the appeal." Farley, 238 F.2d at 576. Rather, Bloch simply states that she appeals "from the decision of Judge Hurley entered in the action on June 7, 2010 denying her to be lead plaintiff . . . ." (Bloch Notice of Appeal, undated but received in Chambers on June 22, 2010 (Dkt. No. 342).) Given that Bloch has failed to present any ground for appeal, there is no basis for the Court to grant in forma pauperis status for appeal purposes. However, given Bloch's pro se status, the Court has nonetheless reviewed the record. After careful review, and for the reasons stated in the Court's April 23, 2010 and June 7, 2010 Orders, the Court finds that Bloch's requests to be a named plaintiff and/or to intervene in this class action were properly denied and there is no substantial question for review. Accordingly, the Court certifies that any appeal would not be taken in good faith, would be an improper interlocutory appeal and thus the request to proceed in forma pauperis on appeal is denied. Further requests to proceed in forma pauperis should be directed to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure. SO ORDERED. Dated: Central Islip, N.Y. September 29, 2010 ____________________________ Denis R. Hurley, United States District Judge

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