Oliva v. Brookwood Coram I, LLC et al

Filing 35

ORDER denying 34 Motion to Compel. For the reasons set forth herein, plaintiff's motion for an order directing the Public Access to Court Electronic Records system (PACER) to (1) waive PACER fees he has incurred, (2) reactivate his PACER account and (3) waive future PACER fees while this litigation is pending is denied. The Clerk of Court is directed to mail a copy of this Order to plaintiff. Ordered by Judge Joan M. Azrack on 4/30/2015. (Petilla, Charlotte)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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VINCENT OLIVA,

NOT FOR PUBLICATION

Plaintiff,

MEMORANDUM & ORDER
14-CV-2513 (JMA) (AYS)

-againstBROOKWOOD CORAM I, LLC,
BROOKWOOD MANAGEMENT CO.,
STEVEN AUERBACK, CEO/Owner, and
NANCY AUERBACH a/k/a NANCY
AUERBACH-KARWICK, Owner ,
Defendants.
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AZRACK, United States District Judge:
Pro se plaintiff Vincent Oliva initiated this action alleging discrimination in violation of
the Fair Housing Act and various other federal and state laws. (Compl., ECF No. 1.) Judge
Seybert granted his request to proceed in forma pauperis on May 15, 2014. (Order, ECF No. 6.)
Oliva now requests that the Court waive fees he has accrued for accessing documents on the
Public Access to Court Electronic Records (“PACER”) system. Because Oliva failed to pay
such fees, his access to PACER was suspended and his account was referred to a collection
agency. Based on his claimed need to research other discrimination cases, Oliva requests that
the Court waive the $59.60 in fees he has already incurred, reactivate his PACER account and
direct PACER to waive all future fees. Those requests are denied.
I.

BACKGROUND

To ensure adequate funding for PACER, users are charged fees for accessing documents
or performing other tasks on the system. The applicable fees are set forth in a schedule issued by

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the Judicial Conference of the United States. Electronic Public Access Fee Schedule (Dec. 1,
2013), https://www.pacer.gov/documents/epa_feesched.pdf (last visited Mar. 25, 2015)
(hereinafter “Fee Schedule”). Generally, users are charged a usage fee of 10 cents per page (up
to a maximum of 30 pages) for accessing dockets, case documents, transcripts or reports on
PACER. Id. ¶¶ 1-2.
The usage fee is automatically waived for accessing (1) any judicial opinions, (2) any
information or documents viewed at a courthouse public access terminal, and (3) one copy of
most electronically filed documents in a case in which the user is a party. Id. ¶ 8. Moreover,
fees are automatically excused for users who accrue fees totaling $15 or less in a quarterly billing
cycle. Id.
In addition to those automatic fee waivers, courts have discretion to “exempt certain
persons or classes of persons from payment of the user access fee.” Id. ¶ 9. Under that
provision, the Court can exempt those who are unable to pay the regular usage fee, including
indigents, nonprofits, pro bono attorneys or researchers associated with educational institutions.
Id.
II.

DISCUSSION

Oliva requests that the Court waive his past and future usage fees and direct PACER to
reactive his account. Because those requests turn on the question of whether Oliva would be
entitled to a discretionary exemption under the Fee Schedule, the Court considers them together.
In support of his requests, Oliva argues that he is unable to afford the regular fees and
notes that he has been granted leave to proceed in forma pauperis. But “[a] party seeking a
discretionary exemption cannot rely on his in forma pauperis status alone.” In re Club Ventures
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Investments LLC, 507 B.R. 91, 99 (S.D.N.Y. 2014) (quoting Mallgreen v. Parties in this Petition,
No. 13-CV-3360 (S.D.N.Y. Aug. 1, 2013)). Rather, a party must demonstrate that an additional
exemption “is necessary in order to avoid unreasonable burdens and to promote public access to
information.” Fee Schedule ¶ 9.
Oliva does not satisfy that standard. Under the automatic exemptions, Oliva has ample
opportunity both to conduct research and monitor the developments in his litigation. Not only
can he obtain a copy of documents filed in his case and judicial opinions without charge, but he
may also freely peruse the entire PACER database using the public access terminals in the
courthouse. Id. ¶ 8. Because Oliva does not explain how that level of access is insufficient for
his purposes, he falls short of establishing that the regular usage fee constitutes an unreasonable
burden. See Mallgreen, Slip Op. at 2 (“Without some explanation of how the automatic fee
exemptions are insufficient for the Petitioner’s purposes, he has failed to demonstrate that the
PACER user fees are an unreasonable burden.”).
Nor may Oliva end-run the unreasonable burden standard by claiming that the suspension
of his account renders him unable to take advantage of the automatic exemptions. Access to
PACER is a privilege, not a right. Users seeking to avail themselves of that privilege expressly
“assume responsibility for all fees incurred” and are informed that service may be suspended if
“the amount due is not paid by the due date.” Polices & Procedures, https://www.pacer.gov/
documents/pacer_policy.pdf (Aug. 18, 2014) (last visited Apr. 23, 2015). Since Oliva failed to
honor his half of the bargain, his access to the PACER system was properly suspended.1 Id.

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As noted above, Oliva is not entitled to a discretionary exemption under the Fee Schedule. Therefore, the Court
need not consider whether it would be proper to waive past fees and direct an account to be reactivated where a
party has established that he would have initially satisfied the standard for a discretionary exemption.

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III.

CONCLUSION

For the reasons stated above, Oliva’s requests are denied. The Court certifies pursuant to
28 U.S.C. § 1915 (a)(3) that any appeal from this order and judgment would not be taken in good
faith and therefore in forma pauperis status is denied for purpose of an appeal. See Coppedge v.
United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to mail a copy of this Order to plaintiff.
SO ORDERED.
Dated: April 30, 2015
Central Islip, New York

/s/ (JMA)
__________________________
Joan M. Azrack
United States District Judge

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