Thomas v. Narraway et al

Filing 4

ORDER. By letter dated September 5, 2017, Plaintiff asked the Court to reconsider its order [ECF #3] denying plaintiff's motion for in formal pauperis.. Plaintiff has not met the statutory requirements for in forma pauperis status; that is, he h as not shown that he is "unable to pay such fees." 18 U.S.C. § 1915(a)(1). Rather he has studiously avoided providing the information requested by the Court. Consequently, the action is dismissed without prejudice, based upon Plainti ff's failure to pay the filing fee as directed earlier. The request for reconsideration is denied. The Clerk is directed to close this action. Signed by Hon. Charles J. Siragusa on 9/19/17. Copy of this order and the NEF mailed to pro se plaintiff at 83 Vernon Place Upper, Buffalo, NY 14214 (KAP)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DAMIEN THOMAS,
Plaintiff,
ORDER

-vs-

17-CV-6388 CJS

OFFICER N. NARRAWAY, et al.,
Defendants.

On June 16, 2017, Plaintiff submitted a Complaint, ECF No. 1, along with a
Motion for Leave to Proceed in forma pauperis (“IFP”)pursuant to 28 U.S.C. § 1915,
ECF No. 2. By Order [#3] dated August 24, 2017, the Court denied the application to
proceed IFP, stating, in pertinent part:
Plaintiff has not met the statutory requirements for in forma pauperis
status, since his application fails to provide sufficient information. In
particular, Plaintiff indicates that he resides in an apartment in Buffalo,
New York, but has no means of support, no savings, and no assets.
Additionally, approximately half of the form affidavit was left blank.
Order [#3]. The Court indicated that if Plaintiff did not pay the full filing fee by
September 15, 2017, the action would be dismissed.
Plaintiff did not pay the filing fee. Instead, by letter dated September 5, 2017,
Plaintiff asked the Court to reconsider its order. Plaintiff contended that the Court
denied his application “without a valid right,” because he is “a lay man at law.” Plaintiff
further chided the Court for denying his incomplete application, and opined that the
Court should have contacted him and requested additional information. Additionally,
Plaintiff submitted another IFP application, though it is not the form application that the
Court provides on its website for use by Pro Se litigants. Rather, it is a “short form” IFP

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application that Plaintiff obtained elsewhere. Conveniently for Plaintiff, this “short form,”
unlike the form which the Court provides, does not ask applicants, who claim to have no
means of support, to explain how they are surviving. In other words, Plaintiff has
submitted a form which still does not provide the information which the Court indicated
was missing from the original application. Plaintiff indicates that he has no job and no
assets, though he is still residing at the same address he has had for the past several
years.
The Court observes that this is Plaintiff’s third lawsuit in this Court. The Court’s
records indicate that Plaintiff has also filed these other actions, proceeding pro se:
Thomas v. Millspaugh, 14-CV-6249 CJS (“Millspaugh”) and Thomas v. Howard, 15-CV6649-CJS (“Howard”). Plaintiff applied to proceed IFP in both of these earlier cases,
using the IFP application form provided by the Court. In the Millspaugh IFP application,
Plaintiff claimed to be “self employed” and to have “varying” income, though he
submitted a “profit loss statement” showing average monthly earnings of $1,422.00.
Plaintiff indicated that he supported his son, and that someone named “Denee Rich”
paid for “at least half” of the household expenses. In the Howard IFP application,
Plaintiff stated that his “business [was] failing,” but that he still had monthly income of
$1,000.00. Plaintiff indicated that Denee Rich, who resided at the same address, and
who was also his co-plaintiff in Howard, was paying “all bills.”
The Court granted the IFP application in the Millspaugh case, which is still
pending. In the Howard case, the Court denied the IFP application, stating, in pertinent
part:
Both Plaintiffs have declared that their household expenses are paid by
Denee Rich. The combined income of the two Plaintiffs is $4,700 per

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month. Plaintiffs’ incomes place them well above the poverty threshold.
For this reason, Plaintiffs’ applications for leave to proceed [IFP] will be
denied[.]
Howard, Docket No. [#5].
In light of this history, Plaintiff’s unwillingness to complete the Court’s IFP
application form (which would require him to explain how he is being supported), and his
feigned lack of familiarity with the Court’s procedures, are suspicious to say the least.
In any event, it appears clear that Plaintiff is being supported by someone, if not Denee
Rich, whose income is relevant to the Court’s IFP consideration.
The IFP statute applies where a litigant would otherwise be “blocked” by his
financial condition from pursuing his rights, but not where paying the filing fee would
merely be inconvenient. See, Sears, Roebuck & Co. v. Charles W. Sears Real Estate,
Inc., 686 F. Supp. 385, 388 (N.D.N.Y.) (“Defendant Sears' access to this court has not
been blocked by his financial condition; rather, 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.”) (citations and internal quotation marks omitted), aff'd, 865 F.2d 22 (2d Cir.
1988). Where a litigant is supported by another person, the Court may consider that
person’s ability to pay the filing fee. 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.”) (citation omitted).
Here, Plaintiff has not met the statutory requirements for in forma pauperis
status; that is, he has not shown that he is “unable to pay such fees.” 18 U.S.C. §

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1915(a)(1). Rather he has studiously avoided providing the information requested by
the Court. Consequently, the action is dismissed without prejudice, based upon
Plaintiff’s failure to pay the filing fee as directed earlier. The request for reconsideration
is denied. The Clerk is directed to close this action.
IT IS SO ORDERED.
DATED:

September 19, 2017
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

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