Miller et al v. Smith et al
ORDER denying 2 Motion for Leave to Proceed in forma pauperis; For the reasons set forth above, IT IS HEREBY ORDERED: The Clerk of the Court shall process Daniel's partial payment of $175.00; Daniel shall remit $227.00, the balance due towards the $402.00 filing fee, within thirty (30) days from the date of this Order. Mary's application to proceed IFP is DENIED. Mary is ORDERED to pay the $402.00 filing fee within thirty (30) days from the date of this Order, at which time the Court will sever her claims from those brought by Daniel and shall address them as a separate civil action. Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that any appeal from this Order would not be taken in good faith; therefore, in forma pauperis status is denied for the purpose of any appeal. So Ordered by Judge Joanna Seybert on 6/2/2021. C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DANIEL MILLER, MARY MILLER,
ANDRE SMITH, Parole Officer; TANYA
HUBBARD, Senior Parole Officer;
TINA M. STANFORD, Chairwoman, Board
of Parole; NYSDOCCS, ROGER TRAYNOR,
Senior Offender Rehabilitation
Coordinator at Franklin Correctional
Facility; COURTNEY LEONARD, Senior
Offender Rehabilitation Coordinator
at Franklin Correctional Facility;
MS. MORALES, Offender Rehabilitation
Coordinator at Green Haven Correctional
Facility; COUNTY OF NASSAU; JOHN DOE,
Commissioner of the Nassau County
Department of Social Services; ANTHONY
ANNUCCI, Acting Commissioner of DOCCS;
A. RUSSO, Superintendent of the Green
Haven Correctional Facility,
Daniel Miller, pro se
Green Haven Correctional Facility
P.O. Box 4000
594 RT 216
Stormville, New York 12582
Mary Miller, pro se
207 West Broadway
Inwood, New York 11096
SEYBERT, District Judge:
On May 25, 2021, incarcerated pro se plaintiff Daniel
Miller (“Daniel”) and his mother, Mary Miller (“Mary” and together
with Daniel, “Plaintiffs”), filed another Complaint in this Court
pursuant to 42 U.S.C. § 1983, together with an application for the
Daniel’s deficient filing, i.e., his partial
payment of the filing fee, and Mary’s motion for leave to proceed
in forma pauperis (“IFP”).
(IFP Motion (“Mot.”), ECF No. 2.1)
For the reasons that follow, (1) this case is held in abeyance
until the required filing fees are paid in accordance with this
Order, and (2) the IFP Motion is DENIED.
Daniel is no stranger to the federal courts.
long history of frivolous and vexatious litigation, he has been
barred from proceeding IFP under 28 U.S.C. § 1915(g)’s “three
See Miller v. Annucci (“SDNY Action”), No.
The Court is in receipt of a second supplemental affidavit filed
by Daniel (see ECF No. 8) that was not served on Mary. Rule 5 of
the Federal Rules of Civil Procedure requires that each plaintiff
must serve his co-plaintiffs with all documents or motions filed
with the Court.
Accordingly, Daniel is directed to serve all
documents or motions filed in this action on Mary, and vice-versa.
In any event, because the second supplemental affidavit relates to
Plaintiffs’ application for emergency relief, which is held in
abeyance until the required filing fees are paid, the Court
declines to consider it at this time.
18-CV-0037, 2018 WL 10125145, at *1 (S.D.N.Y. Feb. 27, 2018)
(noting bar) (hereafter, the “SDNY Order”).
that he is barred from proceeding IFP but has remitted only
$175.00, his purported “pro rata share” of the filing fee. 2
May 10, 2021 Cover Letter, ECF No. 1-3 (identifying a $175 U.S.
Postal Money Order, for Daniel’s pro rata share of the filing fee,
as included with the Plaintiffs’ filing); see also IFP Mot., ¶¶ 23, and ECF p. 4 (stating that Mary is paying Daniel’s purported
$175.00 share of the filing fee).)
filing fee, Mary states that she will be “the one who will have to
pay for [Daniel’s] pro rata share of the Docket Fee anyway.”
Mot. ¶ 2.)
She requests that the $402.00 fee be reduced to
$350.00, and that the Court accept the $175.00 Money Order as
“payment in full.”
(Id. ¶ 3; see also id. ECF p. 4.)
In support of her IFP Motion, Mary reports: she is
Pursuant to 28 U.S.C. § 1914, “(a) The clerk of each district
court shall require the parties instituting any civil action . .
. to pay a filing fee of $350.00.”
The District Court’s
Miscellaneous Fee Schedule adds a $52.00 “administrative fee” for
filing any civil action in the district court. Thus, this Court
collects $402.00 for the filing fee. However, the administrative
“fee does not apply to . . . persons granted in forma pauperis
status under 28 U.S.C. § 1915.” See District Court Miscellaneous
Fee Schedule ¶ 14, https://www.nyed.uscourts.gov/court-fees. As
noted supra, however, Daniel cannot proceed IFP.
retired (id. ¶ 6); she receives monthly income in the total sum of
$4,187.00 from Social Security and her New York State Retirement
Pension (id. ¶ 8); her monthly expenses total $4,077.00 (id.); and
that the only account that she has is her “regular checking account
from which all of my monthly bills are paid” (id. ¶ 9).
Mary did not disclose the balance in her checking account.
also states that she “will have to borrow money to file the
Complaint” if her IFP application is denied, and that she is
“borrowing another $5,000 from a friend in case I have to pay for
an apartment for Daniel to get him out of prison.
(Id. ¶¶ 14-15.)
Daniel’s Partial Payment Request
Although Daniel and Mary litigated the very same partial
payment issue they currently press before this Court in the SDNY
Action, neither references that Action or the SDNY Order wherein
Chief Judge McMahon determined that each plaintiff was required to
10125145, at *5.
In that case, the Court carefully reviewed the
requirements of 28 U.S.C. §§ 1915 and 1915A and concluded, along
with the majority of district courts within the Second Circuit, as
well as the Third, Seventh, and Eleventh Circuits, that each
prisoner-plaintiff is required to pay the full filing fee.
*2-3 (citing Hubbard v. Haley, 262 F.3d 1194, 1197 (11th Cir. 2001)
(“‘[T]he PLRA clearly and unambiguously requires’ each prisoner to
pay the full filing fee.”); Boribourne v. Berge, 391 F.3d 852, 856
(7th Cir. 2004) (“[A]lthough the ‘norm in civil litigation’ is
that there is but one filing fee per case, § 1915(b) ‘specifies a
per-litigant approach to fees . . . .’”); Hagan v. Rogers, 570
F.3d 146, 155 (3d Cir. 2009) (holding that each prisoner must pay
a full filing fee)).
Tellingly, notwithstanding their voluminous
submission here, Plaintiffs do not reference Chief Judge McMahon’s
SDNY Order, 3 which this Court has reviewed and finds to be wellreasoned.
See SDNY Order, 2018 WL 10125145, at *5 (holding that
allowing Daniel, a prisoner who is barred from proceeding IFP under
§ 1915(g), “to split the cost of a single filing fee would undercut
both the filing-fee requirement and the three-strikes sanction”).
Therefore, for substantially the same reasons articulated by Chief
Judge McMahon in the SDNY Order, Daniel’s present request to
partially pay the filing fee, i.e., pay his purported pro rata
share of the fee, is DENIED.
Rather, the Court finds he is
required to pay in full the $402.00 filing fee.
Given Daniel’s remittance of $175.00, the Court will
Indeed, the plaintiffs sought reconsideration of the SDNY Order,
which was denied. See Miller v. Annucci, No. 18-CV-0037, 2018 WL
10125146 (S.D.N.Y. Apr. 20, 2018).
apply it towards the $402.00 filing fee.
Daniel shall have thirty
(30) days from the date of this Order to remit the remaining
$227.00 balance to the Clerk of the Court.
is to process Daniel’s partial payment.
in abeyance until the balance is received.
The Clerk of the Court
This case will be held
Daniel is ON NOTICE:
(1) his payment of the filing fee does not exempt him
from the requirements of 28 U.S.C. § 1915A; therefore, he should
carefully consider his prior and pending litigation addressing
some of the same issues raised in the present Complaint;
(2) failure to comply with this Order, absent a showing
of good cause, will result in the dismissal of his claims for
failure to prosecute pursuant to Federal Rule of Civil Procedure
(3) there will be no refund of the partial payment.
Mary’s IFP Motion
With regard to Mary’s application to proceed IFP, the
application is DENIED.
not a right.”
“In forma pauperis status is a privilege,
Bonano v. Costello, No. 19-CV-0671, 2019 WL 3081058,
at *2 (N.D.N.Y. July 15, 2019) (citing Anderson v. Coughlin, 700
F.2d 37, 42 (2d Cir. 1983)).
To qualify for IFP status, the
Supreme Court has long held that “an affidavit is sufficient which
states that one cannot because of his poverty pay or give security
for the costs [inherent in litigation] and still be able to provide
himself and dependents with the necessities of life.”
E.I. Du Pont De Nemours & Co., 335 U.S. 331, 339 (1948) (internal
quotation marks omitted).
The purpose of the statute permitting
litigants to proceed IFP is to ensure that “indigent persons have
equal access to the judicial system.”
Davis v. N.Y.C. Dep’t of
Educ., No. 10-CV-3812, 2010 WL 3419671, at *1 (E.D.N.Y. Aug. 27,
The determination of whether an applicant qualifies for
IFP status is within the discretion of the district court.
v. N.Y.C. Dep’t of Envtl. Prot., No. 12-CV-6344, 2013 WL 1410380,
at *2 (E.D.N.Y. Apr. 8, 2013) (collecting cases).
The Court may
dismiss a case brought by a plaintiff requesting to proceed IFP if
the “allegation of poverty is untrue.”
28 U.S.C. § 1915(e)(2)(A).
The Court has reviewed Mary’s application and finds that
she is not qualified to proceed IFP.
As stated, supra, Mary
reports receiving monthly income in the amount of $4,187.00 per
Although Mary reports having a checking account from which
she pays her bills, she has omitted the balance in that account.
Mary also avers that she is able to borrow money from friends.
See Fridman v. City of New York, 195 F. Supp. 2d 534, 537 (S.D.N.Y.
2002) (“In assessing an application to proceed in forma pauperis,
a court may consider the resources that the applicant has or can
get from those who ordinarily provide the applicant with the
necessities of life, such as from a spouse, parent, adult sibling
or other next friend.” (internal quotation marks and citation
Accordingly, Mary does not qualify for IFP status.
See Wrenn v. Benson, 490 U.S. 89, 90 n.4 (1989) (per curiam)
(denying leave to proceed IFP based on review of information
contained in the supporting affidavit of indigency).
applications to proceed IFP in Miller v. Cuomo, No. 19-CV-1028,
ECF No. 5 (N.D.N.Y. Nov. 12, 2019), and in Miller v. Cuomo, No.
20-CV-0575, ECF No. 11 (N.D.N.Y. Sept. 28, 2020).
If Mary elects
to pay the filing fee, the Court will sever her claims from those
brought by Daniel and shall address them as a separate civil
See SDNY Order, 2018 WL 10125145, at *5.
reiterates that there are no refunds of the filing fee once it is
For the reasons set forth above, IT IS HEREBY ORDERED:
The Clerk of the Court shall process Daniel’s partial
payment of $175.00;
Daniel shall remit $227.00, the balance due towards the
$402.00 filing fee, within thirty (30) days from the date of this
Daniel is cautioned that, absent a showing of good cause,
his claims will be dismissed without prejudice and without further
notice should he fail to timely comply with this Order;
Mary’s application to proceed IFP is DENIED.
ORDERED to pay the $402.00 filing fee within thirty (30) days from
the date of this Order, at which time the Court will sever her
claims from those brought by Daniel and shall address them as a
separate civil action.
Mary is further cautioned that, absent a
prejudice and without further notice should she fail to timely
comply with this Order.
Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies
that any appeal from this Order would not be taken in good faith;
therefore, in forma pauperis status is denied for the purpose of
See Coppedge v. United States, 369 U.S. 438, 444-45
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
June 2 , 2021
Central Islip, New York
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