Micolo v. O'Neill

Filing 12

MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; Plaintiff's request to proceed in forma pauperis is GRANTED. and the Complaint is sua sponte DISMISSED as against O'Neill and DEEMED AMENDED to name the Depar tment of Justice as the sole Defendant. The Clerk of the Court is directed to amend the caption of the Complaint, to forward a copy of the Summons, Complaint, and this Order to the United States Marshal Service for service upon the Department of Just ice without prepayment of fees, and to serve notice of entry of this Order in accordance with Rule 77(d)(1) of the Federal Rules of Civil Procedure by mailing a copy of this Order to the pro se Plaintiff at his last known address. The Court certifie s 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. So Ordered by Judge Joanna Seybert on 2/7/2017. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
MARCUS ANTHONY MICOLO,
Plaintiff,

MEMORANDUM & ORDER
16-CV-5635(JS)(AKT)

-against-

SEAN O’NEILL, Chief, Administrative
Appeals Staff,
Defendant.
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APPEARANCES
For Plaintiff:
Marcus Anthony Micolo
03-A-3985, pro se
Clinton Correctional Facility
P.O. Box 2001
Dannemora, NY 12929
For Defendant:

No appearance.

SEYBERT, District Judge:
On October 3, 2016, incarcerated pro se plaintiff Marcus
Anthony Micolo (“Plaintiff”) filed a Complaint in this Court
pursuant to the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(B)
(“F.O.I.A.”), against Sean O’Neill, Chief, Administrative Appeals
Staff of the U.S. Department of Justice, Office of Information
Policy (“O’Neill”).

Accompanying the Complaint is an application

to proceed in forma pauperis.

However, Plaintiff did not file the

required Prisoner Authorization Form (“Form”).
Notice

of

Deficiency

dated

October

13,

2016,

Accordingly, by
Plaintiff

was

instructed to complete and return the enclosed Form within fourteen
(14) days in order for his Complaint to proceed.

On October 25,

2016, Plaintiff timely complied with the Notice of Deficiency and
filed the completed Form.

(See Docket Entry 8.)

Upon

review

of

the

declarations

in

support

of

the

application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified to commence this action without prepayment
of the filing fee.

See 28 U.S.C. § 1915(a)(1).

Therefore,

Plaintiff’s request to proceed in forma pauperis is GRANTED.
However, because FOIA grants district courts jurisdiction
to enjoin an agency from withholding agency records that have
allegedly

been

improperly

withheld

from

Plaintiff,

5

U.S.C.

§ 552(a)(4)(B) (emphasis added), “[i]ndividual federal officials
are not proper defendants in a FOIA action because it is the
agency’s

responsibility to produce records.”

Jefferson v. Reno,

123 F. Supp. 2d 1, 3 (D. D.C. 2000) (emphasis in original); see
also Brown v. U.S. Dept. of Justice, 734 F. Supp. 2d 99, 102 (D.
D.C. 2010).

Thus, the Department of Justice is the proper agency

Defendant for purposes of this action.

Accordingly, the Complaint

is sua sponte DISMISSED as against O’Neill and DEEMED AMENDED to
name the Department of Justice as the sole Defendant.
The Clerk of the Court is directed so amend the caption
of the Complaint, to forward a copy of the Summons, Complaint, and
this Order to the United States Marshal Service for service upon
the Department of Justice without prepayment of fees, and to serve
notice of entry of this Order in accordance with Rule 77(d)(1) of
the Federal Rules of Civil Procedure by mailing a copy of this
Order to the pro se Plaintiff at his last known address.
2

See FED.

R. CIV. P. 5(b)(2)(c).
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.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: February
7 , 2017
Central Islip, New York

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