Rech v. Monroe County et al
Filing
16
DECISION AND ORDER denying 13 Motion ; denying 13 Motion for Leave to Appeal in forma pauperis; denying 13 Motion to Remand to State Court; denying 13 Motion for Extension of Time to File. Signed by Hon. Michael A. Telesca on 12/14/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHAEL RECH,
Plaintiff,
No. 6:17-cv-6418(MAT)
DECISION AND ORDER
-vsCOUNTY OF MONROE, DANIEL STROLLO,
MONROE COUNTY SHERIFFS DEPARTMENT, LT.
FAY, SGT. DERUYTER, DEPUTY D. PHILLIP,
DEPUTY KEN WEBER, and DEPUTY GEORGE
WILCZAK,
Defendants.
I.
Introduction
Plaintiff Michael Rech, acting pro se, commenced the instant
action in New York State Supreme Court, Monroe County (“Monroe
County Supreme Court”) on June 5, 2017.
Plaintiff’s complaint
purports to bring claims against defendants pursuant to 42 U.S.C.
§ 1983, the New York State Constitution, and the common law.
Plaintiff seeks to assert causes of action alleging unlawful
arrest,
unlawful
search
and
seizure,
malicious
prosecution,
harassment, and intentional and negligent infliction of emotional
distress.
On June 27, 2017, defendants filed a Notice of Removal seeking
to remove the action from Monroe County Supreme Court to this Court
under 28 U.S.C. § 1441.
Plaintiff subsequently filed a motion to
remand the matter to state court, which the Court denied by
Decision and Ordered dated October 3, 2017.
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On
November
11,
2017,
plaintiff
filed
a
notice
of
interlocutory appeal regarding this Court’s order denying his
motion for remand.
Plaintiff concurrently filed a motion in which
he seeks (1) in forma pauperis status with respect to his appeal;
(2) permission to file a late notice of appeal; (3) reconsideration
of the Court’s prior order denying his motion for remand; and
(4) permission to file electronically.
For the reasons discussed
below, the Court denies plaintiff’s motion in its entirety.
II.
Discussion
A.
Motion to Proceed In Forma Pauperis
Plaintiff asks this Court to grant him permission to proceed
in forma pauperis with respect to his interlocutory appeal.
A
party seeking permission to proceed in forma pauperis bears the
burden of demonstrating that he is indigent.
See Potnick v. E.
State Hosp., 701 F.2d 243, 244 (2d Cir. 1983).
In this case,
plaintiff has submitted no information whatsoever regarding his
financial status to the Court in connection with his motion for in
forma pauperis status.
Accordingly, the Court has no grounds on
which it could possible find that he has met his burden of
establishing indigence.
The Court therefore denies plaintiff’s
motion for permission to proceed in forma pauperis.
B.
Request to File a Late Notice of Appeal
Plaintiff has also requested permission to file a late notice
of appeal.
The Court’s Decision and Order denying plaintiff’s
motion for remand was filed on October 3, 2017.
Pursuant to
Federal Rule of Civil Procedure 4(a)(1)(A), a notice of appeal must
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be filed with the district clerk within 30 days after entry of the
judgment or order appealed from - in this case, no later than
November 2, 2017. Plaintiff’s notice of appeal was received by the
Clerk’s
Office
on
November
1,
2017,
within
that
deadline.
Accordingly, plaintiff’s request to file a late notice of appeal is
denied as moot.
C.
Request for Reconsideration
Plaintiff has also asked the Court to revisit its prior
decision denying his motion to remand this case to state court.
In
support of this request, plaintiff argues that (1) he is being
prejudiced by having to proceed in federal court, because he is not
permitted
to
file
and
receive
documents
electronically
and
(2) defendants failed to comply with the Court’s direction that
they file an amended notice of filing of notice of removal with the
Monroe County Supreme Court no later than October 8, 2017.
Plaintiff’s
arguments
are
without
merit.
Plaintiff
has
offered no plausible argument that being required to file and
receive documents manually, rather than electronically, is causing
him prejudice.
Countless litigants, in this Court and others
across the county, participate in manual filing every day, and it
does not impede their ability to effectively prosecute their
litigation.
Regarding plaintiff’s contention that defendants failed to
comply with this Court’s order, a review of the state court docket
in this matter shows that defendants did indeed file an amended
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notice
of
filing
a
notice
of
removal
on
October
6,
2017.
Plaintiff’s argument is therefore without factual basis.
In short, plaintiff has failed to identify any facts that
would warrant revisiting the Court’s prior determination that
remand to state court is not warranted.
Accordingly, his request
is denied.
D.
Request for Permission to File Electronically
Plaintiff’s final request is that he be permitted to file
electronically
in
this
case.
Administrative
Procedures
Pursuant
Guide
for
to
this
Electronic
District’s
Filing
(the
“Procedures Guide”), a judge may, in his discretion, “grant a pro
se litigant [who] demonstrates a willingness and capability to file
documents
electronically,
Procedures Guide at 3.
permission
to
register
to
do
so.”
In this case, based on plaintiff’s conduct
to date, the Court is not persuaded that plaintiff has demonstrated
a capability to appropriately use the electronic filing system.
The Court therefore declines to exercise its discretion to permit
plaintiff to register for electronic filing at this time.
III. Conclusion
For the foregoing reasons, plaintiff’s motion (Docket No. 13)
is denied in its entirety.
ALL OF THE ABOVE IS SO ORDERED.
s/ Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
December 14, 2017
Rochester, New York.
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