Stair et al v. Calhoun et al

Filing 69

ORDER denying 65 Motion for Leave to Appeal in forma pauperis. SO ORDERED that plaintiffs motion for leave to proceed on appeal in formapauperis is denied. Pursuant to Rule 24(a)(4) of the Federal Rules of Appellate Procedure, the Clerkof the Cour t shall serve notice of entry of this order upon all parties and immediately notify theUnited States Court of Appeals for the Second Circuit of this decision. Pursuant to Rule 24(a)(5) ofthe Federal Rules of Appellate Procedure, inter alia, plaintiff may file a motion for leave to proceedon appeal in forma pauperis in the United States Court of Appeals for the Second Circuit withinthirty (30) days after the Clerk of this Court serves notice of entry of this order upon him. CM to pro se plaintiff. CM to 2nd Circuit Court of Appeals via ecf/nef. Ordered by Judge Sandra J. Feuerstein on 5/1/2015. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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THEODORE STAIR, individually, THEODORE
STAIR, an Officer, Director and Shareholder of
American Virgin Enterprises, Ltd., derivatively
on behalf of American Virgin Enterprises, Ltd.,
and THEODORE STAIR, as a Member of
Sirius Development, LLC, derivatively on
behalf of Sirius Development, LLC,

FILED 
CLERK 

5/1/2015 4:29 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Plaintiffs,
ORDER
12-CV-6121 (SJF)(SIL)

-againstRORY CALHOUN, JOHN HANRAHAN,
ROBERT E. PARELLA and H. LINWOOD
GILBERT,
Defendants.
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FEUERSTEIN, District Judge:

Pending before the Court is an application by pro se plaintiff Theodore Stair (“plaintiff”) for
leave to proceed in forma pauperis on his appeal of so much of an order of this Court, dated March
31, 2015, as granted the branches of defendants’ motion seeking dismissal of his claims against Rory
Calhoun (“Calhoun”) and Robert E. Parella (“Parella”) pursuant to Rule 56 of the Federal Rules of
Civil Procedure and dismissed his claims against Calhoun and Parella in their entirety with prejudice
as time barred. For the reasons stated herein, plaintiff’s application is denied.
Rule 24(a)(1) of the Federal Rules of Appellate Procedure provides, in relevant part, that
with an exception not relevant here,1
“a party to a district-court action who desires to appeal in forma pauperis must file a
motion in the district court[] * * * [and] attach an affidavit that: (A) shows in the

1

Since plaintiff did not seek leave to proceed in forma pauperis in this action, Rule
24(a)(3) of the Federal Rules of Appellate Procedure is not applicable.
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detail prescribed by Form 4 of the Appendix of Forms the party’s inability to pay or
to give security for fees and costs; (B) claims an entitlement to redress; and (C) states
the issues that the party intends to present on appeal.”
Plaintiff’s unsworn declaration2 in support of his application indicates only that he intends to
appeal “[f]rom an order stating (1) the branches of defts [sic] motion seeking dismissal of plaintiffs
[sic] claims against Calhoun and Parella pursuant to Rule 56 of the Federal Rules of Civil Procedure
are granted and plaintiffs [sic] claims against Calhoun and Parella are dismissed in their entirety with
prejudice as time barred entered in this action on the 31st day of March, 2015[,]” without identifying
the issues that he intends to present on the appeal as required by Rule 24(a)(1)(C) of the Federal
Rules of Appellate Procedure.
Moreover, plaintiff’s unsworn declaration is not subscribed by him to be “true under penalty
of perjury” as required by 28 U.S.C. § 1746.3 In order to comply with Section 1746, “the declarant
must (1) ‘declare * * *,’ (2) ‘under penalty of perjury,’ (3) that the matter sworn to is ‘true and
correct.’” In re World Trade Center Disaster Site Litig., 722 F.3d 483, 488 (2d Cir. 2013)
(quoting 28 U.S.C. § 1746). “Inclusion of the language ‘under penalty of perjury’ is an integral

2

Plaintiff submits two (2) declarations with his application: (a) a “Motion For Leave To
Proceed On Appeal In Forma Pauperis” (“plaintiff’s unsworn declaration”), in which he declares,
inter alia, that he believes he is entitled to relief and that he appeals from the part of the March
31, 2015 order indicated above; and (b) an “Application to Proceed in District Court without
Prepaying Fees or Costs (Short Form)” (“plaintiff’s affidavit”), which addresses only plaintiff’s
purported inability to pay or to give security for fees and costs on the appeal.
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Section 1746 of Title 28 of the United States Code provides, in relevant part:
“Whenever, * * * under any rule * * * any matter is required * * * to be supported
* * * by the sworn * * * affidavit, in writing of the person making the same * * *,
such matter may, with like force and effect, be supported * * * by the unsworn
declaration * * *, in writing of such person which is subscribed by him, as true
under penalty of perjury, and dated, in substantially the following form: * * * (2)
If executed within the United States * * *: ‘I declare * * * under penalty of perjury
that the foregoing is true and correct. Executed on (date). (Signature)’.”
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requirement of the statute for the very reason that it impresses upon the declarant the specific
punishment to which he or she is subjected for certifying to false statements[,]” id., and omission
of that phrase would “allow the affiant to circumvent the penalties for perjury in signing onto
intentional falsehoods.” Id. (quotations, brackets and citation omitted). Accordingly, Section
1746 “requires that a certification of the truth of a matter be expressly made under penalty of
perjury.” Id. Since plaintiff merely “declare[s] that [he is] the appellant/petitioner in the aboveentitled proceeding[,]” and his unsworn declaration neither indicates that it was made “under
penalty of perjury,” nor certifies that the matters sworn to therein are “true and correct,” it is
insufficient to substitute as the affidavit required by Rule 24(a)(1) of the Federal Rules of Appellate
Procedure. Accordingly, plaintiff has not submitted an affidavit, or proper substitute therefor,
“claim[ing] an entitlement to redress” or “stat[ing] the issues that [he] intends to present on appeal”
as required by Rule 24(a)(1)(B) and (C) of the Federal Rules of Appellate Procedure.
Furthermore, plaintiff’s affidavit does not contain the level of detail about his inability to pay
or to give security for the fees and costs of the appeal required by Rule 24(a)(1)(A) of the Federal
Rules of Appellate Procedure. Specifically, plaintiff omitted any information regarding his
employment status and income, and responded to only two (2) of the six (6) categories of “other
income” he received in the past twelve (12) months. Moreover, plaintiff’s response to the amounts
of “other income” he receives from the two (2) sources he identified in the affidavit is incomplete,
insofar as he asserts only that he “expect[s] to receive” social security disability benefits and food
stamps “in the future,” but he does not indicate the amounts he received from those sources, if any,
in the past twelve (12) months. Since plaintiff has not attached an affidavit satisfying the
requirements of Rule 24(a)(1) of the Federal Rules of Civil Procedure, his application for leave to
proceed on appeal in forma pauperis is denied.

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III.

Conclusion
For the reasons set forth herein, plaintiff’s motion for leave to proceed on appeal in forma

pauperis is denied. Pursuant to Rule 24(a)(4) of the Federal Rules of Appellate Procedure, the Clerk
of the Court shall serve notice of entry of this order upon all parties and “immediately notify” the
United States Court of Appeals for the Second Circuit of this decision. Pursuant to Rule 24(a)(5) of
the Federal Rules of Appellate Procedure, inter alia, plaintiff may file a motion for leave to proceed
on appeal in forma pauperis in the United States Court of Appeals for the Second Circuit within
thirty (30) days after the Clerk of this Court serves notice of entry of this order upon him.
SO ORDERED.
SANDRA J. FEUERSTEIN
United States District Judge
Dated: May 1, 2015
Central Islip, New York

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