Opinion
5:23-CV-0728 (DNH/ML)
12-15-2023
MICHAEL P. McWILLIAMS, Plaintiff, v. PAUL A. SANDY, in his official capacity as Chief of Police for the Cortland City Police Dep't; DAVID GUERRERA, in his official capacity as Deputy Chief of Police for Cortland City Police Dep't; CORTLAND CITY POLICE DEP'T -CRIMINAL INVESTIGATION DIV.; and CORTLAND CITY POLICE DEP'T, Defendants.
MICHAEL P. McWILLIAMS Plaintiff, Pro Se
MICHAEL P. McWILLIAMS Plaintiff, Pro Se
REPORT AND RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Plaintiff Michael P. McWilliams (“Plaintiff”) commenced this action pro se on June 1, 2023, by the filing of a Complaint with the District Court for the Southern District of New York. (Dkt. No. 1.) Plaintiff did not pay the filing fee for this action and sought leave to proceed in forma pauperis (“IFP”). (Dkt. No. 2.) On September 19, 2023, the undersigned denied Plaintiff's IFP application and directed Plaintiff to, within thirty days, pay the $402.00 filing fee. (Dkt. No. 9.) The Court's order of September 19, 2023, was served via regular mail at Plaintiff's address of record. (Id.) Despite the passage of more than thirty days since the issuance of the Court's order dated September 19, 2023, Plaintiff has taken no further action in this case. (See generally docket sheet.)
II. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS
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 filing fee in this district increased to $405 as of December 1, 2023. However, the filing fee was $402 at the time that Plaintiff commenced this action.
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 the Court's determination that Plaintiff does not qualify for leave to proceed without prepayment of fees, and Plaintiff having failed to comply with this Court's order dated September 19, 2023, I now recommend that Plaintiff's Complaint be dismissed for failure to pay the required filing fee. 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).