McNeill v. Jordan et al

Filing 4

MEMORANDUM & ORDER denying 2 Motion for Leave to Proceed in forma pauperis. Plaintiff is DIRECTED to pay the $400 filing fee within fourteen (14) days of entry of this Order, should he wish to proceed with his suit. No summons shall issue at this time and all further proceedings shall be stayed for fourteen (14) days or until Plaintiff has complied with this Order. If Plaintiff fails to pay the filing fee within the time allowed, the instant Complaint shall be dismissed without prejudice. So Ordered by Judge Nicholas G. Garaufis on 5/15/2014. (c/m to pro se) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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FITZROY MCNEILL,
Plaintiff,
-against-

MEMORANDUM & ORDER
14-CV-2872 (NGG)

DETECTIVE JONATHAN JORDAN, Shield No.
2824, DETECTIVE WILLIAM J. SOMMER,
Shield No. 2586, and ANTHONY GOMEZ,
Defendants.

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NICHOLAS G. GARAUFIS, United States District Judge.

On May 5, 2014, prose Plaintiff Fitzroy McNeill initiated the instant action, which
asserts claims against Defendants under 28 U.S.C. § 1983, N.Y. Public Health Law§ 2803, and
N.Y. Comp. Codes R. & Regs. Tit. 10, § 405.8. (Compl. (Dkt. 1).) On the same day, Plaintiff
also filed an application to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915.
(Mot. to Proceed IFP (Dkt. 2).) For the reasons stated below, Plaintiff's IFP application is
DENIED and he is DIRECTED to pay the filing fee of $400 within fourteen (14) days of the date
of this Order in order to proceed with this action.

I.

DISCUSSION

"The purpose of the statute permitting litigants to proceed IFP is to insure that indigent
persons have equal access to the judicial system." Glass v. Comm'r of Soc. Sec., No. 13-CV4026 (ENV), 2013 WL 3938740, at *1 (E.D.N.Y. July 30, 2013). Section 1915 of Title 28 of the
United States Code authorizes a court to dismiss a case brought by a plaintiff requesting to
proceed IFP ifthe "allegation of poverty is untrue." 28 U.S.C. § 1915(e)(2)(A). Determination
of whether a plaintiff qualifies for IFP status is within the discretion of the district court. See

Pinede v. N.Y.C. Dep't ofEnv't Prot., No. 12-CV-6344 (CBA), 2013 WL 1410380, at *2
(E.D.N.Y. Apr. 8, 2013); DiGianni v. Pearson Educ., No. 10-CV-0206 (RJD}, 2010 WL
1741373, at *1 (E.D.N.Y. Apr. 30, 2010).
Having reviewed the financial disclosures made by Plaintiff on his application, the court
finds that Plaintiff has failed to establish that he is unable to pay the court's filing fee. Plaintiff is
employed by Heads Up Fire Sprinkler Services, Inc. and earns $800 per week, with take home
wages of$569.59 per week. (Mot., 2.) Plaintiff additionally represents that he has $300 in a
checking account. (IQJ Plaintiff's expenses total $1,933 per month, and he lists approximately
$16,850.52 in additional debts. (IQJ In the court's view, therefore, Plaintiff's application
establishes that he has sufficient resources to pay the $400 filing fee to commence this action.

II.

CONCLUSION
Accordingly, Plaintiff's application to proceed IFP is DENIED. Plaintiff is DIRECTED

to pay the $400 filing fee within fourteen (14) days of entry of this Order, should he wish to
proceed with his suit. No summons shall issue at this time and all further proceedings shall be
stayed for fourteen (14) days or until Plaintiff has complied with this Order. If Plaintiff fails to
pay the filing fee within the time allowed, the instant Complaint shall be dismissed without
prejudice.
The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken
in good faith and therefore IFP status is denied for the purpose of any appeal. Coppedge v.
United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

s/Nicholas G. Garaufis

a:

eICHOLAS
GARAUFi- ~
nited States District Judge

Dated: Brooklyn, New York
May Ir, 2014

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