Alster v. Fischer et al

Filing 90

DECISION AND ORDER defendants' motion to revoke plaintiff's in forma pauperis status and to relieve plaintiff's counsel of the duty to represent him pro bono 87 is denied. Signed by Hon. Marian W. Payson on 2/8/2018. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
STEPHEN ALSTER,
also known as Steven Alster,
DECISION & ORDER
Plaintiff,
09-CV-6510CJS
v.
BRIAN FISCHER, et al.,
Defendants.
_______________________________________

Pending before this Court is a motion filed by defendants to revoke plaintiff’s
in forma pauperis status and to relieve plaintiff’s counsel of the duty to represent him pro bono.
(Docket # 87). Defendants’ motion is denied.
Plaintiff, an inmate in the care and custody of the New York State Department of
Corrections and Community Supervision (“DOCCS”), filed the initial Complaint in this matter
on October 7, 2009, and applied for permission to proceed in forma pauperis. (Docket ## 1, 2).
His application disclosed that he received monthly pension payments in the approximate amount
of $1,400 and that those payments were deposited into a bank account with a current balance of
between $100 and $200; it also disclosed that his inmate account had a balance of between $100
and $500, and the correctional facility where he was incarcerated certified that his prison account
had a current balance of approximately $300.1 (Docket # 2). On October 27, 2009, the court
granted plaintiff leave to proceed in forma pauperis. (Docket # 3).

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The actual amount noted is illegible. (Docket # 2).

On October 18, 2010, several days after the initial scheduling conference, plaintiff
filed a motion seeking appointment of counsel. (Docket # 20). Defendants submitted a
declaration in response, stating that they took “no position” on the application. (Docket # 21 at
¶ 2). On January 21, 2011, this Court granted plaintiff’s application and appointed Chad
Flansburg, Esq., to represent plaintiff. (Docket # 23). Since that time, Mr. Flansburg has
continuously and vigorously represented plaintiff, prosecuting and defending various discovery
motions and opposing defendants’ motion for summary judgment. At no time has plaintiff or his
counsel moved to terminate their relationship or sought court intervention to address relationship
difficulties. In short, the record suggests that they have developed and sustained a productive
attorney-client relationship.
Now – over eight years after the court permitted plaintiff to proceed in forma
pauperis, seven years after Mr. Flansburg was appointed counsel, and six months after the
district court decided defendants’ summary judgment motion (by permitting certain First
Amendment claims to proceed) – defendants seek to revoke the order granting in forma pauperis
status and to modify the terms of plaintiff’s attorney-client relationship by requiring him to
contribute to the costs of counsel on the grounds that his monthly pension payments refute his
claimed indigency. (Docket # 87). I decline to do so.
Counsel for defendants concedes that plaintiff disclosed his pension payments in
his original IFP application. (Docket # 87-1 at 1). Counsel does not argue that the information
contained in plaintiff’s 2009 application was untruthful or inaccurate in any manner. (Id.).
Although counsel did not represent defendants at that time, their then-counsel did not oppose the
application or seek reconsideration of the court’s order granting it. Nor, when plaintiff moved
for appointment of counsel, did defendants’ counsel oppose the application or seek

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reconsideration of the order granting it on the grounds that plaintiff had sufficient funds to
contribute to the costs of counsel. The reason proffered for the extraordinary delay is that
current counsel did not personally learn of plaintiff’s pension payments until he deposed plaintiff
several months ago. (Docket # 89 at 2). Of course, that information is not new and has been
available to defendants and their counsel since plaintiff filed his application in 2009.
Although “[s]tatus to proceed in forma pauperis, once granted, is not intended to
be insulated from further consideration,” Rosario v. Mastrantonio, 2009 WL 5178353, *1
(W.D.N.Y. 2009), reexamination of that status appears to occur most often where plaintiff’s
financial condition has changed since he or she was granted poor person status, see, e.g., id. at *2
(revoking poor person status “because plaintiff’s financial condition has changed since the
granting of his application to proceed in forma pauperis and because he has sufficient funds to
pay the filing fee”); Holman v. Thompson, 1992 WL 142349, *4 (N.D. Ill. 1992) (“a court may
reexamine a plaintiff’s pauper status if his financial conditions change”), or where the original
application contains inaccuracies or omits relevant information, see Woodward v. Afify, 2017
WL 4276651, *5-6 (W.D.N.Y. 2017) (revoking poor person status where plaintiff’s application
“did not include a statement of the amount of money in his prison account . . . [or] an inmate
account balance certification”); see also Arzuaga v. Quiros, 781 F.3d 29, 34 (2d Cir. 2015)
(“there appears to be no dispute that [plaintiff’s] IFP affidavits accurately described the state of
[his] finances at the time [he] filed his motions to proceed IFP[;] [plaintiff] therefore complied
with the documentation requirements of the IFP statute”). Even assuming that this Court has the
authority to revoke an order issued years ago on concededly accurate information,
reconsideration of which was not timely sought, on the basis that it was improvidently granted,
this Court declines to do so on the unique facts of this case. Too much time has passed to revisit

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an order that was admittedly issued upon truthful disclosures. To revoke that order now, and
impose modifications to the financial terms of the relationship between the plaintiff and his
attorney that neither is seeking, would risk complicating, if not jeopardizing, their established
and seemingly productive relationship. Indeed, the day after the pending motion was filed,
plaintiff’s counsel wrote the Court and expressed “concern[ ] that [plaintiff] may feel that a
conflict exists that should prevent [counsel] from representing [plaintiff] in opposing the motion
and [may] seek alternative counsel.” (Docket # 88). On this record, defendants’ motion is
denied.
Counsel are directed to confer and submit a final proposed scheduling order by no
later than February 22, 2018.

CONCLUSION
For these reasons, defendants’ motion to revoke plaintiff’s in forma pauperis
status and to relieve plaintiff’s counsel of the duty to represent him pro bono (Docket # 87) is
DENIED.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
February 8, 2018

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