Morrison v. Buffalo Board of Education et al

Filing 35

DECISION AND ORDER denying 30 Motion for Leave to Appeal in forma pauperis. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 11/21/2017. (SFR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
FAITH ANDREA MORRISON,
Plaintiff,
Case # 15-CV-800-FPG
v.
DECISION AND ORDER
BUFFALO BOARD OF EDUCATION, et al.
Defendant.

INTRODUCTION
Plaintiff commenced this action in September 2015 and was represented by Attorney
Raymond P. Kot, II. ECF No. 1. On September 28, 2017, the Court granted Defendants’ Motions
to Dismiss. ECF No. 24. Plaintiff filed a Motion for Leave to Appeal in forma pauperis pursuant
to 28 U.S.C. § 1915 and Rule 24 of the Federal Rules of Appellate Procedure. For the reasons
stated below, Plaintiff’s Motion is denied without prejudice.
LEGAL STANDARD
I.

Procedural Requirements
Rule 24 provides, in relevant part, that “a party to a district-court action who desires to

appeal in forma pauperis must file a motion in the district court.” Fed. R. App. P. 24(a)(1).
However, “[a] party who was permitted to proceed in forma pauperis in the district-court action
… may proceed on appeal in forma pauperis without further authorization[.]” Id. at 24(a)(3). The
motion to appeal in forma pauperis must include an affidavit that: “(A) shows in the detail
prescribed by Form 4 of the Appendix of Forms the party’s inability to pay or to give security for
fees and costs; (B) claims an entitlement to redress; and (C) states the issues that the party intends
to present on appeal.” Id. at 24(a)(1)(A)-(C). “If the district court denies the motion, it must state
its reasons in writing.” Id. at 24(a)(2).

II.

In Forma Pauperis Determination
Plaintiff bears the burden of establishing his or her indigence. See Potnick v. E. State Hosp.,

701 F.2d 243, 244 (2d Cir. 1983). “[O]ne [need not] be absolutely destitute to enjoy the benefit”
of the in forma pauperis statute. Adkins v. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948).
Rather, “[a]n affidavit to proceed in forma pauperis is sufficient if it indicates that one cannot,
because of his poverty, afford to pay the costs of litigation and still provide himself and his
dependents with the necessities of life.” Kilichowski v. Hocky, No. 99-CV-2874 JG, 1999 WL
504285, at *1 (E.D.N.Y. July 5, 1999). “If it appears that an applicant’s access to [ ] court has not
been blocked by his financial condition; rather [that] he is merely in the position of having to weigh
the financial constraints posed if he pursues [his position] against the merits of his case, then a
court properly exercises its discretion to deny the application.” Fridman v. City of New York, 195
F. Supp. 2d 534, 537 (S.D.N.Y. 2002) (citing Sears, Roebuck and Co. v. Sears, 686 F. Supp. 385,
385 (N.D.N.Y. 1988), aff’d 865 F.2d 22 (2d Cir. 1988)) (internal quotations omitted) (alterations
in original).
DISCUSSION
Plaintiff did not proceed in forma pauperis in the district court action in this matter. She
retained Attorney Raymond P. Kot, II. ECF No. 30-1 at 1-2. Therefore, Plaintiff requires
authorization to proceed on appeal in forma pauperis and has moved for such relief, filing a Motion
to Proceed In Forma Pauperis And Supporting Affirmation (“Motion and Affirmation”). ECF No.
30.
Along with her Motion and Affirmation, Plaintiff submitted (1) an affidavit from her
attorney, Mr. Kot, (“Attorney Affidavit”) (ECF No. 30-1) and (2) an affidavit from Plaintiff
(“Plaintiff’s Affidvait”) (ECF No. 30-2). The Attorney Affidavit supports Plaintiff’s Motion and
Affirmation and indicates that Mr. Kot intends to file a motion with the Second Circuit for Pro
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Hac Vice admission pursuant to Local Rule 46.1(d)(2) if Plaintiff is granted in forma pauperis
status. ECF No. 30-1 at 2. Second Circuit Local Rule 46.1(d)(2) permits an attorney to seek Pro
Hac Vice admission if he or she is a member in good standing of a state or District of Columbia
bar and acting for a party proceeding in forma pauperis. Loc. R. 46.1(d)(2).
Plaintiff’s Affidavit is styled as an “Affidavit in Support of Pro Hac Vice Motion” and
requests that the Second Circuit grant her attorney’s motion for Pro Hac Vice admission—a motion
that Mr. Kot intends to file in the Second Circuit if the instant motion is granted. ECF No. 30-1 at
2, ¶ 3; ECF No. 30-2 at 1, 6. Plaintiff’s Affidavit contains additional information regarding her
purported indigence that is not included in her Motion and Affirmation. The only motion properly
before the Court is Plaintiff’s Motion and Affirmation to proceed on appeal in forma pauperis and
the Court will thus consider Plaintiff’s submissions, including Plaintiff’s Affidavit, solely for the
purpose of determining whether Plaintiff qualifies for in forma pauperis status.
Plaintiff, who is legally blind, has been employed as a full-time teacher in the Dekalb
County Public School District in Dekalb County, Georgia since July 31, 2017. ECF No. 30-2 at 3,
¶¶ 8, 10. Plaintiff states that her annual salary is $51,000 (ECF No. 30-2 at 3, ¶ 8) but elsewhere
states that her gross monthly wages are only $3,000 per month (ECF No. 30 at 1). Between losing
her job in April 2014 and her employment by Dekalb County Public Schools in July 2017, Plaintiff
was “itinerantly employed as an independent contractor in the education field.” ECF No. 30-2 at
3, ¶ 6. Plaintiff’s income supports her husband, who is presently unemployed, their three children,
and her mother. ECF No. 30 at 2; ECF No. 30-2 at 3-4, ¶¶ 10-11. Plaintiff states that she has only
$25.00 in cash, $40.00 in a checking account, and $0.00 in savings accounts (ECF No. 30 at 1-2),
but that she has other savings and investments totaling $1,500 (ECF No. 30-2 at 4, ¶ 18). Plaintiff
affirms that she and her husband own two properties: a primary residence in Duluth, Georgia with
an estimated value of $140,000 and a condominium in Florida that “costs [Plaintiff and her
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husband] $2,000 per month for mortgage, taxes, and insurance and home owners’ association
fees.” ECF No. 30 at 2; ECF No. 30-2 at 4, ¶ 13. She did not provide an estimated value for the
Florida condominium.
Plaintiff further affirms that her family’s current indebtedness is approximately
$1,000,000, which includes “all mortgages, student loans, car payments and other debt.” ECF No.
30-2 at 5, ¶ 22. This debt includes $72,000 owed to a medical institution for Plaintiff’s four eye
surgeries. ECF No. 30-2 at 5-6, ¶¶ 20, 21. Despite Plaintiff’s substantial debt, the Court finds that
Plaintiff has sufficient resources to proceed without in forma pauperis status in light of Plaintiff’s
current income and property ownership. See United Parcel Serv. of Am., Inc. v. The Net, Inc., 470
F. Supp. 2d 190, 194 (E.D.N.Y. 2007) (finding that the plaintiff had sufficient resources to proceed
without in forma pauperis status based on his income and ownership of two houses, despite owing
$1,000,000 in federal taxes). The Court finds that Plaintiff is not “blocked by [her] financial
condition” but rather “is in the position of having to weigh the financial constraints posed” if she
pursues her position against the merits of her appeal. See Fridman, 195 F. Supp. 2d at 537.
Moreover, Plaintiff has not satisfied the procedural requirements of Rule 24. First, Plaintiff
does not state the issues that she intends to present on appeal. See Fed. R. App. P. 24(a)(1)(C).
This information assists the Court in determining whether an appeal is taken in good faith. See 28
U.S.C. § 1915(a)(3) (“An appeal may not be taken in forma pauperis if the trial court certifies in
writing that it is not taken in good faith.”). Second, Plaintiff must demonstrate her inability to pay
or give security for fees and costs in the detail prescribed by Form 4 of the Appendix of Forms.1
See Fed. R. App. P. 24(a)(1)(A). While Plaintiff’s submissions do provide a significant level of
detail, they fail to provide all of the information requested on Form 4 and some of the information
that is provided does not include the requisite level of detail.

1

Form 4 is available on United States Court of Appeals for the Second Circuit’s website.
(http://www.ca2.uscourts.gov/clerk/case_filing/forms/forms_home.html).

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CONCLUSION
For the reasons stated, Plaintiff’s Motion for Leave to Appeal in forma pauperis (ECF No.
30) is DENIED WITHOUT PREJUDICE. Pursuant to Rule 24(a)(5) of the Federal Rules of
Appellate Procedure, Plaintiff may file a motion to proceed in forma pauperis in the Court of
Appeals within 30 days of this Decision and Order, which constitutes “Notice of District Court’s
Denial” pursuant to Rule 24(a)(4).

IT IS SO ORDERED.
Dated: November 21, 2017
Rochester, New York
__________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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