Toney v. Probation Department

Filing 4

ORDER granting 2 Motion for Leave to Proceed in forma pauperis; Plaintiff's application to proceed in forma pauperis is GRANTED and the Court ORDERS service of the Complaint by the United States Marshal Service without prepayment of the fil ing fee. The Clerk of the Court shall forward the Summons, the Complaint, and this Order to the USMS and the USMS shall serve the Defendant. The Clerk of the Court is further directed to mail a copy of this Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 2/12/2015. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
CHRISTINE TONEY,
Plaintiff,
-against-

ORDER
15-CV-0561(JS)(GRB)

PROBATION DEPARTMENT,
Defendant.
-----------------------------------X
APPEARANCES
For Plaintiff:
Christine Toney, pro se
72 Grant Avenue
Brentwood, NY 11717
For Defendant:

No appearance

SEYBERT, District Judge:
On January 27, 2015, pro se plaintiff Christine Toney
(“Plaintiff”) filed a Complaint pursuant to Title VII of the Civil
Rights Act of 1964 (“Title VII”), as codified, 42 U.S.C. §§ 2000e
to 2000e-17, and the Age Discrimination in Employment Act of 1967
(“ADEA”), as codified, 29 U.S.C. §§ 621-634, against the Probation
Department (“Defendant”) alleging that Defendant discriminated
against her on the basis of her race, gender, and age. Plaintiff’s
Complaint is accompanied by an application to proceed in forma
pauperis.
Plaintiff’s ADEA claim is not plausible as a matter of
law given that Plaintiff alleges that she is less than 40 years old
having been born in 1976.

(Compl. ¶ 7.)

The ADEA prohibits

employment discrimination because a person is age forty (40) or
older.

29 U.S.C. § 631(a); see also Abdu-Brisson v. Delta Air

Lines, Inc., 239 F.3d 456, 467 n.3 (2d Cir. 2001) (stating that
“one

must

reach

the

age

of

forty

before

falling

protection of the ADEA”) (citation omitted).
ADEA

claim

is

sua

sponte

28 U.S.C. § 1915(e)(2)(B)(ii).

DISMISSED

under

the

Thus, Plaintiff’s
pursuant

to

However, Plaintiff’s claims under

Title VII may proceed at this state.
Upon review of Plaintiff’s declaration in support of her
application to proceed in forma pauperis, the Court finds that
Plaintiff’s financial status qualifies her to commence this action
without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(1).
Accordingly, Plaintiff’s application to proceed in forma pauperis
is GRANTED and the Court ORDERS service of the Complaint by the
United States Marshal Service (“USMS”) without prepayment of the
filing fee.

The Clerk of the Court shall forward the Summons, the

Complaint, and this Order to the USMS and the USMS shall serve the
Defendant.
The Clerk of the Court is further directed to mail a copy
of this Order to the pro se Plaintiff.
SO ORDERED.

Dated: February
12 , 2015
Central Islip, New York

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.