James et al v. City of New York

Filing 14

ORDER granting 2 Motion for Leave to Proceed in forma pauperis; granting 3 Motion for Leave to Proceed in forma pauperis; granting 4 Motion for Leave to Proceed in forma pauperis; granting 5 Motion for Leave to Proceed in forma pauperis; granting 6 Motion for Leave to Proceed in forma pauperis; granting 7 Motion for Leave to Proceed in forma pauperis; granting 8 Motion for Leave to Proceed in forma pauperis; granting 9 Motion for Leave to Proceed in forma pauperis. For th e reasons stated in the attached Memorandum and Order, Plaintiffs' motions to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 are granted. Should this action lead to a monetary settlement or award in an amount equal to or greater th an the filing fee, Plaintiffs must, within fifteen days of the receipt of the settlement or award, reimburse the $400.00 filing fee to the Clerk of Court. In addition, Mr. Zelman is appointed to effect service on Defendants. Ordered by Magistrate Judge Vera M. Scanlon on 3/20/2015. (Rice, Liane)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JERMAIN JAMES, MICHAEL LAWTON, :
:
QUAMIEK ROBINSON, SHAQUASIA
SANDERS, ALLEN JOHNSON, ASHLEY :
:
JOHNSON, CAROLYN JOHNSON,
:
WILLIAM SMITH,
:
:
Plaintiffs,
:
:
-against:
THE CITY OF NEW YORK, DETECTIVE :
GABRIEL NACELEWICZ, Shield #6511, :
POLICE OFFICER JOHN/JANE DOE(S) 1- :
:
10,
:
:
Defendants.
-------------------------------------------------------x

ORDER
15 Civ. 1161 (SLT) (VMS)

VERA M. SCANLON, United States Magistrate Judge:
Plaintiffs bring this action pursuant to, inter alia, 42 U.S.C. § 1983, alleging violations of
the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. Plaintiffs are
represented by David A. Zelman, Esq. (“Mr. Zelman”) of the Law Office of David A. Zelman.
Plaintiffs move for leave to proceed in forma pauperis. Mots. to Proceed In Forma Pauperis
(“IFP Mots.”), ECF Nos. 2-9. For the reasons stated herein, Plaintiffs’ motions to proceed in
forma pauperis are granted.
Under 28 U.S.C. § 1915, the Court may waive the $400.00 filing fee to commence a civil
action upon finding that the plaintiff is indigent. See 28 U.S.C. §§ 1914-1915. The
determination of whether a plaintiff qualifies for in forma pauperis status is within the discretion
of the district court. See DiGianni v. Pearson Educ., No. 10 Civ. 206, 2010 WL 1741373, at *1
(E.D.N.Y. Apr. 30, 2010). In this case, Plaintiffs filed applications, under penalty of perjury,

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attesting to their income, savings, expenses1 and debts. See IFP Mots. Some of the plaintiffs
had no income or savings. See, e.g., ECF Nos. 2, 6, 8. Mr. Quamiek Robinson, the plaintiff with
the highest earnings, received take-home wages of $1,136.00 per month and had no savings; he
also had no expenses. ECF No. 7. Ms. Ashley Johnson, the plaintiff with the highest savings,
received take-home wages of $600.00 per month, had $3,000.00 in savings and had expenses of
$200.00 per month. ECF No. 4. Ms. Carolyn Johnson, the plaintiff receiving the highest
benefits, received $887.00 per month in Social Security benefits, but she had only $24.00 in
savings and also paid $550.00 per month in expenses. ECF No. 5.
This case presents unusual circumstances, in that the Plaintiffs seeking in forma pauperis
status are also represented by counsel. According to Mr. Zelman, his office “was retained on a
contingency basis by all [P]laintiffs and [P]laintiffs were not required to pay anything to [his
office] at the outset of this litigation.” Letter, ECF No. 13. Mr. Zelman has not explained
whether Plaintiffs will be required to contribute towards litigation costs during the pendency of
the litigation.
“[A]ttorneys practicing on a contingent fee basis in this district routinely file cases on
behalf of indigent plaintiffs without seeking to proceed in forma pauperis and thereby having the
filing fee waived.” Vargas v. CH Hospitality Mgmt., LLC, No. 14 Civ. 2439 (ENV) (JO), 2014
WL 2930462, at *4 (E.D.N.Y. June 27, 2014) (explaining and reiterating an electronic docket
order denying the request of a represented litigant to proceed in forma pauperis where he had
“not satisfactorily demonstrated that the enforcement of the fee requirement in this case w[ould]
impair his ability to prosecute his claims”). Several courts in this Circuit have concluded that
“an in forma pauperis application ordinarily should not be granted in a contingency fee context.”
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Expenses include housing, transportation, utilities, loan payments, other regular monthly
expenses, and contributions to the support of dependents.
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Fodelmesi v. Schepplerly, 944 F. Supp. 285, 286 (S.D.N.Y. 1996) (granting in forma pauperis
status for purposes of an appeal based on “unique” circumstances involving an eight-year
litigation and “transfers for which plaintiffs and their counsel bear no responsibility and yet
which resulted in increased out-of-pocket expenses that plaintiffs’ counsel reasonably may not
have foreseen when he undertook the representation, thus making his reluctance to proceed
further to advance out-of-pocket expenses something of a special case”); see Vargas, 2014 WL
2930462, at *1 (quoting Fodelmesi); Walker, No. 12 Civ. 840 (MKB) (RLM), 2012 WL
6563044, at *1, *3 n.3 (E.D.N.Y. Dec. 17, 2012) (quoting Fodelmesi; on a motion for
reconsideration, affirming a denial of a request for in forma pauperis status by a plaintiff
represented by Mr. Zelman).
On the other hand, at least one court in this District has concluded that in forma pauperis
status “may not be denied on the basis of a contingency fee arrangement with counsel,” Schwartz
v. Bethel, No. 13 Civ. 2209 (FB) (JMA) (E.D.N.Y. Sept. 25, 2013) (ECF No. 13), because 28
U.S.C. § 1915 “‘is intended to guarantee that no citizen shall be denied an opportunity to
commence . . . an action . . . solely because his poverty makes it impossible for him to pay or
secure the costs.’” Schwartz, No. 13 Civ. 2209 (FB) (JMA) (E.D.N.Y. Sept. 25, 2013) (quoting
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342 (1948)).
On review, the particular circumstances of this case warrant granting the motions for in
forma pauperis status. Having reviewed Plaintiffs’ submissions, even considering that the filing
fee could be split amongst the eight Plaintiffs, the Court finds that their financial circumstances
qualify them to commence this action without prepayment of the filing fee. See 28 U.S.C. §
1915(a)(1). Furthermore, the involvement of eight Plaintiffs, some of whom required medical
treatment that they attribute to Defendants’ actions, suggests that the litigation costs in this action
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will be substantial. To the extent the filing fee may be an obstacle in this case to obtaining
representation by counsel and commencing the litigation, the Court will permit Plaintiffs to
proceed in forma pauperis, on the condition that should they receive any monetary settlement or
award equal to or greater than the $400.00 filing fee, that fee must be paid to the Court within
fifteen days of the receipt of the settlement or award. In addition, the payment of the filing fee to
the Court must be included as a condition to any settlement agreement.
This arrangement balances the Court’s and the public’s interest in obtaining filing fees,
which “are an important source of some of the funds that enable the judiciary to fulfill its
constitutionally prescribed duties to all litigants and to the public,” Vargas, 2014 WL 2930462,
at *4, with the Court’s and the public’s interest in guaranteeing access to justice irrespective of a
litigant’s financial means.
In addition, 28 U.S.C. § 1915(d) requires that when a plaintiff proceeds in forma
pauperis, an “officer of the court shall . . . serve all process” on the plaintiff’s behalf. 28 U.S.C.
§ 1915(d) (emphasis added). It is well-recognized that an attorney is “an officer of the court.”
Maracich v. Spears, 133 S. Ct. 2191, 2201-02 (2013) (describing an attorney as an officer of the
court in the context of the attorney’s “professional responsibilities” and the “proper conduct of
litigation”). Federal Rule of Civil Procedure (“Rule”) 4 further explains that “[a]t the plaintiff’s
request, the court may order that service be made by a United States marshal or deputy marshal
or by a person specially appointed by the court. The court must so order if the plaintiff is
authorized to proceed in forma pauperis under 28 U.S.C. §1915 . . . .” Fed. R. Civ. P. 4(c)(3).
The Court declines to order the United States Marshals Service to effect service on
Defendants. Rather, the Court appoints Mr. Zelman, as an officer of the Court, to effect service.2

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The Court permits Mr. Zelman to hire a process server, but the costs may not be billed to the
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See Vargas, No. 14 Civ. 2439 (ENV) (JO) (E.D.N.Y. June 20, 2014) (ECF No. 5) (directing “the
plaintiff’s counsel of record to show cause by June 27, 2014, why, if the motion [for in forma
pauperis status] is granted, [the court] should not appoint her to serve process on each
defendant”; later denying the motion for in forma pauperis status by Orders dated June 24 and
27, 2014).
In summary, Plaintiffs’ motions to proceed in forma pauperis pursuant to 28 U.S.C. §
1915 are granted. Should this action lead to a monetary settlement or award in an amount equal
to or greater than the filing fee, Plaintiffs must, within fifteen days of the receipt of the
settlement or award, reimburse the $400.00 filing fee to the Clerk of Court. In addition, Mr.
Zelman is appointed to effect service on Defendants.
SO ORDERED.
Dated: Brooklyn, New York
March 20, 2015

Vera M. Scanlon
VERA M. SCANLON
United States Magistrate Judge

Plaintiffs unless they receive a monetary settlement or award that, after repayment of the filing
fee, is equal to or greater than the cost of the process server. To the extent the process server’s
fee will be billed to Plaintiffs, it must be included as a condition of any settlement agreement.
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