Opinion
5:22-CV-1077 (BKS/ML)
04-03-2023
JENNIFER CHAFFEE, and BRYAN FIDDLER, Plaintiffs, v. SYRACUSE CITY SCHOOL DIST; and FRANKLIN ELEMENTARY SCHOOL, Defendants.
JENNIFER CHAFFEE BRYAN FIDDLER PLAINTIFFS, PRO SE
JENNIFER CHAFFEE BRYAN FIDDLER PLAINTIFFS, PRO SE
AMENDED ORDER AND REPORT-RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Plaintiffs Jennifer Chaffee and Bryan Fiddler (collectively “Plaintiffs”) commenced this civil rights action pro se on October 19, 2022, asserting claims arising from the care of their minor son who was a student at Defendant Franklin Elementary School, within Defendant Syracuse City School District (collectively “Defendants”). (Dkt. No. 1.) Plaintiffs did not pay the filing fee for this action and Plaintiff Chaffee sought leave to proceed in forma pauperis (“IFP”). (Dkt. No. 2.)
On February 7, 2023, the undersigned issued a Decision and Order that denied Plaintiff Chaffee's motion for leave to proceed IFP as incomplete. (Dkt. No. 6.) Plaintiffs were cautioned that, should they “wish to proceed with this action, they must either (i) pay the $402.00 filing fee, or (ii) submit a completed and signed IFP long form application in accordance with this Decision and Order within thirty (30) days.” (Dkt. No. 6 at 4.) In addition, Plaintiffs were advised that “[u]ntil such time as each plaintiff pays the full filing fee or submits a completed IFP application . . . review of the complaint pursuant to Section 1915(e) . . . would be premature.” (Id. at 3 [citing Sitts v. Weaver, 20-CV-1471, 2021 WL 51411, at *2 (N.D.N.Y. Jan. 6, 2021) (Suddaby C.J.)].)
On March 15, 2023-thirty six days after the issuance of the Decision and Order issued on February 7, 2023-the undersigned issued a report and recommendation to Chief United States District Judge Brenda K. Sannes recommending that Plaintiffs' Complaint be dismissed for failure to pay the required filing fee or to obtain leave to proceed IFP. (Dkt. No. 7.)
On March 29, 2023, Plaintiff Chaffee filed an amended application for leave to proceed IFP. (Dkt. No. 8.)
II. DISCUSSION
When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $402, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to grant IFP status if it determines that the plaintiff is unable to pay the required fee. 28 U.S.C. § 1915(a)(1). Pursuant to 28 U.S.C. § 1915, where a plaintiff seeks leave to proceed IFP, the court must determine whether the plaintiff has demonstrated sufficient economic need to proceed without prepaying the required filing fee. 28 U.S.C. § 1915(a)(1).
The language of that section is ambiguous because it suggests an intent to limit availability of IFP status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts have construed that section, however, as making IFP status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed.Cl. 366, 367 (Fed. Cl. 2006); see also Fridman v. City of N.Y., 195 F.Supp.2d 534, 536 n.1 (S.D.N.Y. 2002).
The decision of whether to grant an application to proceed IFP rests within the sound discretion of the court. Anderson v. Coughlin, 700 F.2d 37, 42 (2d Cir. 1983). The Court must be satisfied “that the person is unable to pay such fees or give security therefor” prior to granting IFP status. 28 U.S.C. § 1915(a)(1). To make this threshold showing, a plaintiff must demonstrate “that paying such fees would constitute a serious hardship on the plaintiff, not that such payment would render plaintiff destitute.” Fiebelkorn v. United States, 77 Fed.Cl. 59, 62 (Fed. Cl. 2007) (citing Adkins v. E.l. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)); see also Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d Cir. 1983) (“Section 1915[a] does not require a litigant to demonstrate absolute destitution[.]”); accord, Lee v. McDonald's Corp., 231 F.3d 456, 459 (8th Cir. 2000). As the Second Circuit has noted, “no party must be made to choose between abandoning a potential meritorious claim or foregoing the necessities of life.” Potnick, 701 F.2d at 244 (citing Adkins, 335 U.S. at 339).
“Courts in this Circuit have . . . routinely required each plaintiff in a multi-plaintiff litigation to submit separate and complete applications for IFP status.” Sitts v. Weaver, 20-CV-1474, 2021 WL 51411, at *2 (N.D.N.Y. Jan. 6, 2021) (Suddaby, C.J.) (citing Razzoli v. Exec. Office of United States Marshals, 10-CV-4269, 2010 WL 5051083, at *3 (E.D.N.Y. Dec. 2, 2010); Amaker v. Goord, 09-CV-0396, 2009 WL 1586560, at *2 (W.D.N.Y. June 4, 2009)).
Here, Plaintiff Chaffee's amended IFP application is complete and demonstrates economic need. (Dkt. No. 8.) As a result, Plaintiff Chaffee's amended IFP application (Dkt. No. 8) is granted.
“Before the Court can review the sufficiency of the complaint pursuant to Section 1915 . . however, . . . the other plaintiff[] in this action (specifically [Plaintiff Fiddler]) must comply with the statutory filing fee requirements for this action. Until such time as each plaintiff pays the full filing fee or submits a completed IFP application . . . review of the complaint pursuant to Section 1915(e) . . . would be premature.” Sitts, 2021 WL 51411, at *2.
Thus, for this case to proceed, Plaintiff Fiddler must individually, either (a) pay the Court's filing fee of $402.00 in full, or (b) submit a completed and signed long form IFP application in accordance with this Amended Order and Report-Recommendation.
I recommend that, within thirty days from the date of a Decision and Order by the assigned District Judge on this Amended Order and Report-Recommendation, if Plaintiff Fiddler does not fully comply with this Amended Order and Report-Recommendation, he be terminated from the docket and all claims asserted by him be dismissed without prejudice.
ACCORDINGLY, it is
ORDERED that Plaintiff Chaffee's amended IFP application (Dkt. No. 8) is GRANTED only for purposes of filing and any appeal unless the trial court certifies in writing that the appeal is not taken in good faith. See 28 U.S.C. § 1915(a)(3); and it is further
ORDERED that should Plaintiff Fiddler wish to proceed with this action, he must either (i) pay the $402.00 filing fee, or (ii) submit a completed and signed IFP long form application in accordance with this Amended Order and Report-Recommendation; and it is further respectfully
RECOMMENDED that within thirty days from the date of a Decision and Order by the assigned District Judge on this Amended Order and Report-Recommendation, if Plaintiff Fiddler does not fully comply with this Amended Order and Report-Recommendation, he be terminated from the docket and all claims asserted by him be dismissed without prejudice; and it is further
ORDERED that upon Plaintiff Fiddler's compliance or at the expiration of any deadline to comply set forth by the assigned District Judge, the Clerk shall return the file to the Court for further consideration and, if appropriate, review of the complaint in accordance with 28 U.S.C. § 1915(e)(2); and it is further
ORDERED that the Clerk of the Court shall file a copy of this Amended Order and Report-Recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules; and it is further
The Clerk shall also provide Plaintiffs with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
ORDERED that the Clerk shall provide Plaintiff Fiddler with a blank long form IFP application.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen 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 FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).