Guerra v. Jones et al

Filing 5

REPORT AND RECOMMENDATIONS: Plaintiff's 2 motion for leave to proceed in forma pauperis and 3 motion for appointment of counsel is DENIED without prejudice. RECOMMENDED that,should Plaintiff not pay the Court's $350.00 filing fee i n full within thirty days of the filing date of this order, this action be DISMISSED. Objections to R&R due by 2/20/2008 Case Review Deadline 2/25/2008. (Served by regular mail on non elect. party) Signed by Magistrate Judge George H. Lowe on 2/5/08. (dmf)

Guerra v. Jones et al

Doc. 5

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________ DOMINGO P. GUERRA, Plaintiff, v. STEPHEN C. JONES, SCSC Superintendent for the 2004-2005 School Year, et al., Defendants. _____________________________________ APPEARANCES: DOMINGO P. GUERRA Plaintiff Pro Se 107 Cherry Hill Road DeWitt, NY 13214 GEORGE H. LOWE, United States Magistrate Judge ORDER and REPORT-RECOMMENDATION This pro se employment discrimination action has been referred to me by the Honorable Neal P. McCurn, United States District Judge, to hear and determine any pretrial matters therein, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3 of the Local Rules of Practice for this Court. On January 9, 2008, Domingo P. Guerra ("Plaintiff") filed his Complaint in this action (Dkt. No. 1), moved for leave to proceed in forma pauperis (Dkt. No. 2), and moved for the appointment of counsel (Dkt. No. 3). For the reasons discussed below, both Plaintiff's motion to proceed in forma pauperis (Dkt. No. 2) and his motion for the appointment of counsel (Dkt. No. 3) are denied without prejudice. Furthermore, I recommend that, if Plaintiff does not pay the $350.00 filing fee in full within thirty (30) days of the filing date of this order, this action be dismissed. 5:08-CV-0028 (NPM/GHL)

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I.

PLAINTIFF'S COMPLAINT Generally, in his 54-page, single-spaced, typed Complaint, Plaintiff, a former school

teacher employed by the Syracuse City School District ("SCSD"), alleges that 14 employees or board members of the SCSD (as well as an unspecified number of "John Doe" Defendants) violated his civil rights under 42 U.S.C. § 2000e-5 when, between 2004 and 2005, they discriminated against him on the bases of his race, national origin, and age. (See generally Dkt. No. 1.) For a more complete statement of Plaintiff's claims, reference is respectfully made to the entire Complaint. (Id.) II. MOTION TO PROCEED IN FORMA PAUPERIS Having carefully reviewed Plaintiff's in forma pauperis application, I find that Plaintiff may not properly proceed with this matter in forma pauperis based on that application. Specifically, in the application, Plaintiff acknowledges that he has the following income or assets: (1) Between $500 and $1,000 in monthly income from "two part-time jobs as [an] inventory counter." (Dkt. No. 2 at ¶ 2[a].) (2) A bank account containing between $0 and $200 at any given time. (Id. at ¶ 4.) (3) Equity of approximately $42,000 in his home. (Id. at ¶ 5.) (4) Two vehicles with a value of approximately $3,000, and a third vehicle on which he carries a car loan. (Id.) While Plaintiff does state that he supports two children who are living at home while attending college, he acknowledges that his wife (whom he also allegedly supports) has approximately $1,910 in monthly disability income. (Id. at ¶ 3.) As a result, Plaintiff and his 2

wife have a joint monthly income of between $2,410 and $2,910, at least some of which would appear to be tax free. This Court has denied in forma pauperis requests by plaintiffs under analogous circumstances.1 For these reasons, I deny Plaintiff's request without prejudice. Furthermore, I recommend that, if Plaintiff does not pay the $350.00 filing fee in full within thirty (30) days of the filing date of this order, this action be dismissed.2 III. MOTION FOR APPOINTMENT OF COUNSEL Courts cannot utilize a bright-line test in determining whether counsel should be appointed on behalf of a party who lacks funds necessary to hire counsel. Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Instead, a number of factors must be carefully considered by the court in ruling upon such a motion. Among these factors are:

See, e.g., Beaumont v. Comm'r of Soc. Sec., 04-CV-1084, Order (N.D.N.Y. Nov.15, 2004) (plaintiff had approximately $1,300 in bank account, had monthly income of approximately $974 in alimony and spouse's disability benefits, and supported daughter); Houle v. Comm'r of Soc. Sec., 05-CV-0999, Order (N.D.N.Y. filed Aug. 12, 2005) (plaintiff had $838 in bank account, had $66,000 in equity in home, and supported both his wife and daughter); Carrey v. Comm'r v. Comm'r of Soc. Sec., 04-CV-1343, Order (N.D.N.Y. Nov. 29, 2004) (plaintiff had salary of approximately $2,240 per month); Zambri v. Comm'r of Soc. Sec., 07-CV-0639, Order (N.D.N.Y. June 20, 2007) (plaintiff had approximately $1,485 in bank account and monthly income of approximately $1,562). See Sherrell v. Leonard, 98-CV-156, 1998 WL 59458, at *1 (N.D.N.Y. Feb. 11, 1998) (Pooler, J., and Di Bianco, M.J.) (on magistrate's recommendation, ordering plaintiff to pay the filing fee or complete an application to proceed in forma pauperis within thirty days or else the matter would be dismissed without further order of the Court); Christensen v. BristolMyers Co., 86-CV-0183, 1990 WL 6554, at *3 (S.D.N.Y. Jan. 22, 1990) (on magistrate's recommendation, revoking plaintiff's in forma pauperis status and ordering that the action be dismissed if plaintiff failed to pay the filing fee within thirty days of the order); Morales v. E.I. du Pont de Nemours and Co., 02-CV-0786, 2004 WL 2106590, at *3 (W.D.N.Y. Sept. 21, 2004) (recommendation by magistrate that district judge issue an order of dismissal conditioned on the plaintiff's failure to pay the required filing fee). 3
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The indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination. Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994) (quoting Hodge v. Police Officers, 802 F.2d 58, 61 [2d Cir. 1986]). This is not to say that all, or indeed any, of these factors are controlling in a particular case. Rather, each case must be decided on its own facts. Velasquez v. O'Keefe, 899 F. Supp. 972, 974 (N.D.N.Y. 1995) (citing Hodge, 802 F.2d at 61). Here, after carefully reviewing the file in this action, I find that (1) it appears as though, to date, Plaintiff has been able to effectively litigate this action, (2) it appears that the case does not present issues that are novel or more complex than those raised in most employment discrimination actions, (3) while it is possible that there will be conflicting evidence implicating the need for cross-examination at the time of the trial (as is the case in many actions brought under 42 U.S.C. § 2000e-5 by pro se litigants),3 it is highly probable that this Court will appoint trial counsel at the final pretrial conference (should this case survive the filing of any dispositive motions), and (4) I am unaware of any special reasons why appointment of counsel at this time would be more likely to lead to a just determination of this litigation. ACCORDINGLY, it is ORDERED that Plaintiff's motion for leave to proceed in forma pauperis (Dkt. No. 2) is DENIED without prejudice; and it is further I note that, again, "this factor alone is not determinative of a motion for appointment of counsel." Velasquez, 899 F. Supp. at 974. 4
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ORDERED that Plaintiff's motion for the appointment of counsel (Dkt. No. 3) is DENIED without prejudice; and it is further RECOMMENDED that, should Plaintiff not pay the Court's $350.00 filing fee in full within THIRTY (30) DAYS of the filing date of this order, this action be DISMISSED. Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 [2d Cir. 1989]); 28 U.S.C. § 636(b); Fed. R. Civ. P. 6(a), 6(e), 72. Dated: February 5, 2008 Syracuse, New York

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