Opinion
1:22-CV-1158 (LEK/ML)
03-15-2023
JOHN EDWARD FOLAND, Plaintiff, v. THE STATE OF NEW YORK, The Honorable Kathy Hochul, Governor of New York State; COMMONWEALTH OF PENNSYLVANIA, Governor Tom Wolf; and THE STATE OF OHIO, Mike DeWine, Governor of Ohio, Defendants.
John Edward Foland Pro Se Plaintiff Deutschland Germany
APPEARANCES:
John Edward Foland Pro Se Plaintiff Deutschland Germany
OF COUNSEL:
REPORT AND RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
I. BACKGROUND
Plaintiff John Edward Foland (“Plaintiff”), who is proceeding Pro Se, has commenced this action against the State of New York, the Commonwealth of Pennsylvania, and the State of Ohio (collectively “Defendants”). (Dkt. No. 1.) Despite ample notice of the requirement that he either pay a statutory filing fee or submit a properly supported application for leave to proceed in forma pauperis, he has failed to do either. For the reasons set forth below, I recommend that Plaintiff's Complaint (Dkt. No. 1) be dismissed.
II. INTRODUCTION
Plaintiff commenced this civil rights action Pro Se on November 7, 2022, asserting claims against Defendants. (Dkt. No. 1.) On February 7, 2023, the undersigned issued an order denying Plaintiff's in forma pauperis application directing that, within thirty days, Plaintiff either (1) pay the $402.00 filing fee, or (2) submit a renewed IFP long form application detailing his financial condition. (Dkt. No. 4.) The Court's order of February 7, 2023, was served via regular mail at Plaintiff's address of record but was returned as undeliverable. (Dkt. Nos. 4, 5.) Despite the passage of more than thirty days since the issuance of the Court's order dated February 7, 2023, Plaintiff has taken no further action in this case. (See generally docket sheet.)
III. 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).
In this instance, due to Plaintiff's failure to provide complete information concerning his finances, the Court is unable to make any meaningful assessment of his financial status and determine whether he qualifies for leave to proceed without prepayment of fees. Having failed to comply with this Court's order dated February 7, 2023, I now recommend that Plaintiff's Complaint be dismissed for failure to pay the required filing fee or to obtain leave to proceed IFP. See, e.g., Walker v. Vill. Ct., 17-CV-0390, 2017 WL 4220415, at *2 (N.D.N.Y. Aug. 4, 2017) (Peebles, M.J.) (citing Waters v. Camacho, 288 F.R.D. 70, 71 (S.D.N.Y. 2013)) (recommending dismissal of the plaintiff's complaint where he failed to either pay the required filing fee or demonstrate that he qualifies for leave to proceed without prepayment of fees), report and recommendation adopted by, 2017 WL 4221069 (N.D.N.Y. Sept. 20, 2017) (Hurd, J.).
ACCORDINGLY, it is respectfully
RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1) be DISMISSED without prejudice; and it is further
ORDERED that the Clerk of the Court shall file a copy of this report and recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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).