Stair et al v. Calhoun et al

Filing 93

ORDER granting [87, 89] Motions for Leave to Appeal in forma pauperis: For the reasons set forth in the attached Order, Plaintiff's Motions for Leave to Appeal In Forma Pauperis are granted. Ordered by Magistrate Judge Steven I. Locke on 11/16/2016. c/m to pro se Pltf and Dfts. (Cea, Christine)

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, Inc., and
THEODORE STAIR, a Member of Sirius
Development, LLC, derivatively on behalf of Sirius
Development, LLC,
-against-

ORDER
12-CV-6121 (SIL)

Plaintiffs,

RORY CALHOUN, JOHN HANRAHAN, ROBERT E.
PARELLA, and H. LINWOOD GILBERT,
Defendants.
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Presently before the Court are two motions by Plaintiff Theodore Stair
(“Plaintiff” or “Stair”) 1 for leave to proceed on appeal in forma pauperis. See Docket
Entries (“DE”) [87, 89]. Plaintiff seeks in forma pauperis status on appeal of two prior
Orders of this Court: (1) the May 4, 2015 Order, DE [70], denying Stair’s request for
an extension of time to serve Defendant H. Linwood Gilbert (“Gilbert”) and dismissing
all claims against Gilbert pursuant to Rule 4(m) of the Federal Rules of Civil
Procedure (the “May 4, 2015 Order”); and (2) the March 31, 2015 Order, DE [64],
granting Defendants Rory Calhoun’s (“Calhoun”) and Robert Parella’s (“Parella”)
motion for summary judgment and dismissing all claims against them with prejudice

Although Stair is named as a party in three different capacities, he is referred in the singular
as “Stair” or “Plaintiff” throughout the opinion.
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as time barred (the “March 31, 2015 Order”).

For the reasons set forth below,

Plaintiff’s motions are granted. 2
I.

LEGAL STANDARD
Motions to proceed in forma pauperis on appeal “must be made in the first

instance to the district court.” In re Nassau Cty. Strip Search Cases, No. 99-CV-2844,
2010 WL 4021813, at *1 (E.D.N.Y. Sept. 29, 2010). Pursuant to Federal Rule of
Appellate Procedure (“Fed. R. App. P.”) 24, a party making such motion must attach
an affidavit that:
(A) shows in the 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.
Fed. R. App. P. 24(a)(1). “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 the applicant's favor.” Bishop v. Henry
Modell & Co., No. 08 CIV. 7541, 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)). However, a
plaintiff may not appeal in forma pauperis if the District Court certifies in writing
that the appeal is not taken in good faith. See 28 U.S.C. § 1915(a)(3).

The Court notes that embedded within Plaintiff’s motions are two documents titled
“Statement in Support of Motion for Appointment of Counsel.” See May 4, 2015 Order at 14; March
31, 2015 Order at 11. Both requests, however, appear to be directed to the Second Circuit and were
not filed as independent motions. As such, the Court declines to consider these applications.
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II.

DISCUSSION
A. The May 4, 2015 Order
Initially, Stair seeks leave to proceed in forma pauperis on appeal of the May

4, 2015 Order. See DE [87]. This is Plaintiff’s second appeal and in forma pauperis
application in connection with this Order. Indeed, eight days after the May 4, 2015
Order was issued, Stair filed an appeal and moved the District Court to proceed on
appeal in forma pauperis, which was granted by the Honorable Sandra J. Feuerstein.
See DE [73, 74, 75]. The appeal, however, was dismissed by the Second Circuit
because a final order had not yet been issued in this action. See DE [78]. Nonetheless,
on October 17, 2016, Plaintiff again appealed the May 4, 2015 Order and moved for
leave to proceed on such appeal in forma pauperis. See DE [87, 88]. This current
motion to proceed in forma pauperis is almost identical to the prior motion.
Accordingly, for the same reasons as set forth in Judge Feuerstein’s decision granting
the previous in forma pauperis application, DE [75], the Court grants Stair’s motion
to proceed in forma pauperis on his appeal of the May 4, 2015 Order.
B. The March 31, 2015 Order
Stair also seeks leave to proceed in forma pauperis on an appeal of the March
31, 2015 Order. DE [89]. Plaintiff also previously appealed this Order, which was
likewise denied due to a lack of finality, and moved to proceed on appeal in forma
pauperis.

DE [65, 66].

Judge Feuerstein denied the prior in forma pauperis

application, as Stair failed to provide a sworn affidavit, did not explain the issues he
intended to present on appeal, and did not provide a level of detail regarding his
inability to pay. See DE [69]. Stair recently appealed the March 31, 2015 Order for
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a second time, and again moves for leave to appeal in forma pauperis. See DE [89,
90]. Contrary to his prior application, Stair now submits in support of his motion a
sworn affidavit explaining: (1) his entitlement to redress; (2) the issues he intends to
appeal; and (3) a financial affidavit, akin to the one submitted in connection with his
motion for leave to appeal in forma pauperis the May 4, 2015 Order. See DE [89]. As
Plaintiff has met the requirements of Fed. R. App. P. 24, the Court also grants this
motion.
III.

CONCLUSION
For the reasons set forth above, Plaintiff’s Motions for Leave to Proceed on

Appeal In Forma Pauperis are granted.
Dated:

Central Islip, New York
November 16, 2016

SO ORDERED
s/ Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge

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