Aquino v. Legal Aid Society of Nassau County, NY et al

Filing 13

MEMORANDUM & ORDER denying 8 Motion for Leave to Proceed in forma pauperis; denying 11 Motion for Pre Motion Conference; For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is DENIED WITHOUT PREJUDICE to a renewal thereof upon completion of the enclosed application to proceed in forma pauperis. Plaintiff is directed to either remit the $400.00 filing fee or complete and return the enclosed in forma pauperis application within fourteen (14) days from the date of this Order. Plaintiff is cautioned that a failure to timely comply with this Order will lead to the dismissal of the Complaint without prejudice. The letter motion by the District requesting that the Court either schedule a pre-mot ion conference in anticipation of moving to dismiss the Complaint, or, in the alternative, dispensing with such conference and permitting the Nassau County District Court's motion to dismiss, filed on December 14, 2016, to stand is DENIED WITHOU T PREJUDICE to a renewal thereof upon resolution of the Plaintiff's application to proceed in forma pauperis, as set forth above. 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. So Ordered by Judge Joanna Seybert on 1/31/2017. Attachments: # 1 IFP Long Form AO239. (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
DARREN DIONE AQUINO,
Plaintiff,
-against-

MEMORANDUM & ORDER
16-CV-6297(JS)(GRB)

LEGAL AID SOCIETY OF NASSAU COUNTY,
NASSAU COUNTY DISTRICT COURT IN
THE STATE OF NEW YORK, JENNIFER
MCNULTY, MICHELLE DOWST, GEORGE
TORRES, BRIANA RIZZO, and JANE DOE
AND JOHN DOE, IN THEIR OFFICIAL
CAPACITY AS COUNSEL,
Defendants.
-------------------------------------X
APPEARANCES:
For Plaintiff:
Darren Dione Aquino, pro se
574 Junard Boulevard
West Hempstead, NY 11552
For Defendants:
Nassau County
District Court

All other
Defendants

Ralph Pernick, Esq.
New York State Attorney General
200 Old Country Road, Suite 240
Mineola, NY 11501
No appearance.

SEYBERT, District Judge:
On November 7, 2016, pro se plaintiff Darren Dione Aquino
(“Plaintiff”) filed a Complaint against the Legal Aid Society of
Nassau County, NY (“Legal Aid”), the Nassau County District Court
in the State of New York (the “District Court”), Jennifer McNulty
(“McNulty”), Michelle Dowst (“Dowst”), George Torres (“Torres”),
Briana Rizzo (“Rizzo”), and John Doe, and Jane Doe (collectively,
“Defendants”) alleging a deprivation of his constitutional rights

as well as violation of the Americans with Disabilities Act (“ADA”)
and

the

Health

(“HIPPA”).

Insurance

Portability

and

Accountability

Act

Plaintiff did not pay the Court’s filing fee at the

time he filed the Complaint, nor did he file an application to
proceed in forma pauperis.

Accordingly, by Notice of Deficiency

dated November 10, 2016 (“Notice”), Plaintiff was advised that, in
order to proceed with his Complaint, he must either remit the
filing fee or complete and return the enclosed application to
proceed in forma pauperis within fourteen (14) days from the date
of the Notice.

On November 28, 2016, Plaintiff timely filed an

application to proceed in forma pauperis.
Upon review of the declaration in support of Plaintiff’s
application,
incomplete.
indicate

the

Court

finds

that

Plaintiff’s

submission

is

Although Plaintiff has checked the box on the form to

that

he

receives

monthly

Social

Security

payments, he does not state the amount he receives.

Disability

In addition,

although Plaintiff avers that he has monthly expenses for cable
television and cell phone service, the amount of each of these
monthly

services

is

illegible.

question number seven blank.

Further,

Plaintiff

has

left

Given these deficiencies, the Court

is unable to assess Plaintiff’s financial position in the context
of the application and thus his request to proceed in forma
pauperis is DENIED WITHOUT PREJUDICE to a renewal thereof upon
completion of the AO 239 in forma pauperis application form annexed
2

to this Order.1

Plaintiff is directed to either remit the $400.00

filing fee or complete and return the enclosed in forma pauperis
application within fourteen (14) days from the date of this Order.
Plaintiff is cautioned that a failure to timely comply with this
Order

will

lead

to

the

dismissal

of

the

Complaint

without

prejudice.
In addition, on December 15, 2016, the attorney for the
Nassau County District Court filed a letter motion (see Ltr. Mot.,
Docket Entry 11) requesting that the Court either schedule a premotion

conference

in

anticipation

of

moving

to

dismiss

the

Complaint, or, in the alternative, dispensing with such conference
and permitting the District Court’s motion to dismiss, filed on
December 14, 2016, (see Mot., Docket Entry 10) to stand.

The

District Court’s letter motion is DENIED WITHOUT PREJUDICE to a
renewal thereof upon resolution of the Plaintiff’s application to
proceed in forma pauperis, as set forth above.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is DENIED WITHOUT PREJUDICE to a

1

Plaintiff is no stranger to this Court. The Court has reviewed
the applications to proceed in forma pauperis submitted by
Plaintiff in his more recent actions, 14-CV-5446 Aquino v. State
of New York, and 16-CV-00146 Aquino v. SAG AFTRA, and, because
there are inconsistencies in Plaintiff’s responses on the short
form in forma pauperis application (AO 240), Plaintiff can best
set forth his current financial position on the Long Form (AO
239).
3

renewal thereof upon completion of the enclosed application to
proceed in forma pauperis.

Plaintiff is directed to either remit

the $400.00 filing fee or complete and return the enclosed in forma
pauperis application within fourteen (14) days from the date of
this Order. Plaintiff is cautioned that a failure to timely comply
with this Order will lead to the dismissal of the Complaint without
prejudice.
The letter motion by the District requesting that the
Court either schedule a pre-motion conference in anticipation of
moving to dismiss the Complaint, or, in the alternative, dispensing
with such conference and permitting the Nassau County District
Court’s motion to dismiss, filed on December 14, 2016, to stand is
DENIED WITHOUT PREJUDICE to a renewal thereof upon resolution of
the Plaintiff’s application to proceed in forma pauperis, as set
forth above.

(See Ltr. Mot.)

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: January
31 , 2017
Central Islip, New York
4