Grafton v. County Of Nassau et al

Filing 10

ORDER denying 8 Motion for Leave to Proceed in forma pauperis; denying 2 Motion for Leave to Proceed in forma pauperis. SO ORDERED that plaintiff's applications for leave to proceed in forma pauperis are denied and plaintiff must pay a fil ing fee in the amount of four hundred dollars ($400.00) to the Clerk of the Court on or before November 30, 2015, or this action will be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to pr osecute without further notice. Pursuant to Rule 77(d)(1) of the Federal Rules of Civil Procedure, the Clerk of the Court shall serve notice of entry of this order upon plaintiff as provided in Rule 5(b) of the Federal Rules of Civil Procedure and re cord such service on the docket. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 10/28/2015. (Florio, Lisa)

FILED
us

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

IN CLERK'S OFFICE
DISTRICT COURT E D N y

'-- ~. ~ 8 2015

LONG ISLAND OFFICE

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KENNETH GRAFTON,
Plaintiff,

ORDER
15-CV-4563(SJF)(GRB)

-againstCOUNTY OF NASSAU and
SHERIFF MICHAEL J. SPOSATO,
Defendants.

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FEUERSTEIN, District Judge:
On July 22, 2015, incarcerated pro se plaintiff Kenneth Grafton ("plaintiff") filed a civil
rights complaint pursuant to 42 U.S.C. § 1983, accompanied by an application to proceed in
forma pauperis ("IFP application"). By letter dated August 6, 2015, the Court's ProSe Office
advised plaintiff: (I) that his IFP application "[did] not contain enough information for the Court
to consider [it];"' (2) that he must complete the IFP application enclosed therewith and return it
to the Court within fourteen (14) days from the date of the letter; and (3) that if he "[did] not
comply, [his] case will not proceed." (Docket Entry ["DE"]5).
On August 14, 2015, plaintiff returned the IFP application sent to him by the ProSe
Office, but it was incomplete. Specifically, plaintiff responded to only one (1) of the eight (8)
questions contained on that IFP application by indicating that he received no income from any
source in the past twelve (12) months, but he failed to respond to the questions asking, inter alia,
whether he is currently incarcerated and, if so, where; whether he is currently employed and, if

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Specifically, plaintiff failed to provide any responses to five (5) of the eight (8)
questions contained on the form IFP application, and provided complete responses to only two
(2) of the questions therein.
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so, the amount of his gross and "take-home" pay or wages; the amount of money he has in cash
or in a checking or savings account; whether he owns any real or personal property and, if so, the
value of such property; whether he has any monthly expenses and, if so, the amount(s) thereof;
whether anyone is dependent upon him for support and, if so, the amount he contributes to such
support; and whether he has any debts or financial obligations and, if so, the amount(s) thereof.
Accordingly, by letter dated August 25, 2015, the Court's ProSe Office again advised plaintiff:
(I) that his IFP application "[did] not contain enough information for the Court to consider [it];"
(2) that he must complete the IFP application enclosed therewith and return it to the Court within
fourteen (14) days from the date of the letter, i.e., on or before September II, 2015, ~Fed. R.
Civ. P. 6(d); and (3) that if he "[did] not comply, [his] case will not proceed." (Docket Entry
["DE'15). To date, plaintiff has not filed a complete IFP application, paid the filing fee, or taken
any steps to prosecute this action or otherwise communicate with the Court in this case.

I.

DISCUSSION
Civil proceedings brought in forma pauperis are governed by 28 U.S.C. § 1915 ("the IFP

statute"),~ Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007), which requires a prisoner'

applying for leave to proceed in forma pauperis in a civil action in federal court to submit the
following documents upon such application: (I) "an affidavit that includes a statement of all
assets such prisoner possesses that the person is unable to pay such fees or give security
therefor[,] [which] • • *shall state the nature of the action • • • and affiant's belief that the

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The IFP statute defines "prisoner" as "any person incarcerated or detained in any
facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations
of criminal law or the terms and conditions of parole, probation, pre-trial release, or diversionary
program." 28 U.S.C. § 1915(h).
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person is entitled to redress[,]" id. § 1915(a)(l); and (2) "a certified copy of the trust fund
account statement (or institutional equivalent) for the prisoner for the 6-month period
immediately preceding the filing of the complaint * * *, obtained from the appropriate official of
each prison at which the prisoner is or was confined[,]" id. § 1915(a)(2). See Arzuaga v. Quiros,
781 F.3d 29, 34 (2d Cir. 2015). In addition, the lFP statute requires prisoners bringing a civil
action in federal court "to pay the full amount of a filing fee," 28 U.S.C. § 1915(b)(l), "in
installments deducted from their prisoner trust accounts." Arzuaga, 781 F.3d at 34. 3 Thus, in
order to be granted leave to proceed in forma pauperis, a prisoner must submit to the Court, in
addition to the documents required by Section 1915(a), a signed Prisoner Authorization form
authorizing the institution with custody of the prisoner to assess, collect and forward payments
from the prisoner's prison account to the Clerk of the Court until the three hundred fifty dollar
($350.00) filing

fee,~

28 U.S.C. § 1914(a), is paid in full pursuant to Section 1915(b).

Since plaintiffs declarations in support of his lFP applications omit most of the
information regarding the assets he possesses and his monthly liabilities, they do not accurately
indicate the state of his fmances at the time he filed the applications and, thus, do not comply
with the documentation requirements of the lFP statute. Cf. Arzuaga, 781 F.3d at 34 (finding
that the plaintiff complied with the documentation requirements of the lFP statute by submitting

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The lFP statute provides, in relevant part: (1) that "[t]he court shall assess and, when
funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing
fee of20 percent of the greater of- (A) the average monthly deposits to the prisoner's account; or
(B) the average monthly balance in the prisoner's account for the 6-month period immediately
preceding the filing of the complaint* * *[,]" 28 U.S.C. § 1915(b)(l); (2) that "[a]fter payment
of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20
percent of the preceding month's income credited to the prisoner's account[,]" id. § 1915(b)(2);
and (3) that "[t]he agency having custody of the prisoner shall forward payments from the
prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until
the filing fees are paid." Id.
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affidavits accurately depicting the state of his finances at the time he filed his motions to proceed
IFP). Accordingly, plaintifrs applications for leave to proceed in forma pauperis are denied and
plaintiff must pay a filing fee in the amount of four hundred dollars ($400.00)' to the Clerk of the
Court on or before November 30, 2015, or this action will be dismissed without prejudice

pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute
without further notice.
Pursuant to Rule 77(d)(1) of the Federal Rules of Civil Procedure, the Clerk of the Court
shall serve notice of entry of this order upon plaintiff as provided in Rule 5(b) of the Federal
Rules of Civil Procedure and record such service on the docket.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d
21 (1962).
SO ORDERED.

Is!
Sandra J. Feuerstein
United States District Judge
October 28, 2015
Central Islip, New York

Dated:

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An administrative fee of fifty dollars ($50.00) is applied to all civil actions except, inter
alia, for actions in which the plaintiff has been granted leave to proceed in forma pauperis in this
Court.

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