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FRIDMAN v. THE CITY OF NEW YORK

United States District Court, Southern District of New York


April 5, 2002

MIKHAIL FRIDMAN, PLAINTIFF,
V.
THE CITY OF NEW YORK, HS SYSTEMS, INC., MARVA LIVINGSTON HAMMONS AND AURELIO SALON, JR., M.D., DEFENDANTS.

The opinion of the court was delivered by: VICTOR Marrero, United States District Judge

DECISION AND ORDER

Plaintiff Mikhail Fridman ("Fridman"), represented by the law firm of Rosen, Preminger & Bloom (the "Attorneys") brought this action against defendants the City of New York, HS Systems, Inc., New York City Commissioner of Social Services Marva Livingston Hammons and Dr. Aureto Salon Jr. collectively "Defendants"). Defendants drought motions for summary judgment against all of Fridman's claims. Fridman retained the Attorneys under a contingency fee agreement dated July 22, 1997 (the "Retainer"), which was submitted as an attachment to Fridman's letter to the Court dated March 26, 2002. According to the Retainer, "expenses and disbursements for expert testimony and investigative or other services" are to be deducted from the net sum recovery, if any. A reasonable inference would be that the Attorneys agreed to advance Fridman the expenses of litigation. However, the Retainer does not specify how such expenses are paid if Fridman makes no recovery.

By a Decision and Order dated January 30, 2002 ("Decision"), the Court granted Defendants' motion for summary judgment and dismissed the case. On March 1, 2002. Fridman filed a Notice of Appeal from the Decision. On March 8, 2002, Fridman informed the Court of his intention to file a motion for leave to appeal in forma pauperis pursuant to 28 U.S.C. § 1913 and Rule 24(c) of the Federal Rules of Appellate Procedure and requested leave to file without the pre-motion conference required by the Court's Individual Practices. The Court granted Fridman's request to file a motion without a pre-motion conference.

The appeals process can be costly. In addition to paying certain filing fees, an appellant must provide the appellate court with copies of the official record. See Fed. R. App. Proc. 10 and 11. Although his appeal filing fees have been paid, Fridman filed the instant motion in order to avoid incurring the expense of copying the voluminous official record created at the district court level. Fridman stated that he cannot afford to pay the cost of reproducing, binding and filing numerous copies of the Record. Fridman stated that his household's gross monthly income varies between $2,700 and $3,000 and expenses, including entertainment, amount to $2,300 on average. In addition, Fridman and his wife together have $1,600 in their bank accounts.

Leave to proceed in forma pauperis may be granted "in any suit, action or proceeding, civil or criminal, or appeal therein" to a litigant who "submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a)(1).*fn1 If granted, the Court may direct the United States to pay the costs of "printing the record on appeal in any civil or criminal case, if such printing is required by the appellate court." 28 U.S.C. § 1915(c). Section 1915 does not authorize the waiver of witness fees. See Brown v. DeFilippis, 125 F.R.D. 83, 85 (S.D.N.Y. 1989) Nor, of course, does § 1915 empower a court to compel the federal government to pay an attorney's fee. See Sears, Roebuck and Co. v. Sears, 686 F. Supp. 385, 386 (N.D.N Y 1983), aff'd 865 F.2d 22 (2d Cir. 1988).

Rule 24 provides that: "[A] party to a district-court action who desires to appeal in forma pauperis must file a motion in the district court" and attach an affidavit showing in detail the party's inability to pay. If the motion is granted, the party proceeding in forma pauperis may request that the appeal be heard on the original record without reproducing any part of it. See Fed. R. App. Proc. 24(c).

The decision of whether to grant a request to proceed in forma pauperis is left to the District Court's discretion under § 1915. See Williams v. Estelle, 681 F.2d 946. 947 (5th Cir. 1982); Potnick v. Eastern State Hospital, 701 F.2d 243 (2d Cir. 1983) Schwartz v. U.S. Postal Service, 1994 U.S. App. LEXIS 25941, *2 (10th Cir. Sept. 19, 1994). The Court's discretion is limited in that: "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith."*fn2 28 U.S.C. § 1910(a)(3). Furthermore, the Supreme Court explained that:

The public would not be profited if relieved of paying costs of a particular litigation only to have imposed on it the expense of supporting the person thereby made an object of public support. Nor does the result seem more desirable if the effect of this statutory interpretation is to force a litigant to abandon what may be a meritorious claim in order to spare himself complete destitution.

Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948); see also Potnick, 701 F.2d at 244.

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." Williams v. Spencer, 453 F. Supp. 205, 208-09 (D.M.D. 1978) (citing Adkins 335 U.S. at 339-40). If it appears that an applicant's "access to []court has not been blocked by his financial condition; rather [that] 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,'" then a court properly exercises its discretion to deny the application. Sears Roebuck, 686 F. Supp. at 385.

During the proceedings before this Court, Fridman created the voluminous record by attaching, inter alia, entire deposition transcripts of Fridman's experts, Dr. Alexander Elder and Dr. George Brief, as well as inadmissible evidence, such as the entire transcript of a New York City Council hearing, as exhibits. Fridman's deposed experts testified that they charged $300 and $200 per hour for their work on his case. During discovery, which lasted for approximately five years, Fridman retained other experts. of course, also, the usual costs of litigation necessarily accumulated during this time. The Court has been provided with no information as to the initial allocation of these costs or, in particular, whetter Fridman has already absorbed them.

Now Fridman states that he is responsible for the "costs and disbursements of the action" and that he "cannot afford to pay" the $10,000 to $15,000 estimated cost of "reproducing, binding and filing numerous copies of the Record." (Mikhail Fridman Affidavit in Support of Motion for Leave to Appeal In Forma Pauperis, dated March 7, 2002, ¶ 2. Against the background of Fridman's contributions to the Creation of an immense record before the Court, this assertion is somewhat surprising.

Defendants largely base their objection to Fridman's application on the ground that leave to proceed in forma pauperis is intended to assist indigent litigants, and not their attorneys. In fact, in most oases applicants for in forma pauperis status are pro se parties, many of them prisoners, and typically they have not had private retained counsel litigate their cases to some disposition. Here, Fridman does not indicate that he is pursuing his appeal pro se; the remains represented on appeal by the same Attorneys who prosecuted this matter at the District Court for several years. The absence of any affidavit by Fridman or his Attorneys, made in response to Defendants' opposition and explaining their costs arrangement — that is who paid the filing fees, who is responsible for other legal expenses that conceivably may run as much as the cost of reintroducing the record and why it has become necessary at this stage for Fridman to proceed in forma pauperis — raises some doubt as to the merits of Fridman's application and who may be its beneficiary. In other words, on the record before the Court, it appears that Fridman's application is being advanced as much or more to cushion the Attorneys from assuming additional financial risk as to save Fridman from impoverishment should he proceed with his appeal.

The Court also must assess Fridman's financial status. Fridman's wife is gainfully employed and Fridman's social security disability payments supplement her income. Thus, this situation is different from that faced in Potnick, where the pro se litigant subsisted on an income level below the poverty level, had substantial debt, and no means to pay the filing fee required to a complaint. 701 F.2d at 244. Here, Fridman's household income exceeds expenses and Fridman has already presented his case to this Court. At this point, Fridman is not faced with the stark decision between a potentially meritorious claim and foregoing the necessities of life. Although he may not feel affluent and may be leery of taking any additional financial risk in pursuit of his claim, Fridman has not demonstrated the degree of financial stringency necessary to justify relief. See Sears, 865 F.2d at 23; see also Handley v. Union Carbide Corp., 622 F. Supp. 1065 (S.D.W.V. 1985) (denying application for leave to appeal in forma pauperis made by unemployed husband and wife, homeowners, whose monthly expensees exceeded their income from disability payments).

It is not apparent on the record how the public will be served by placing upon it, and thereby alleviating Fridman of, the costs associated with copying the record for Fridman's appeal. Accordingly, the Court denies Fridman's application to appeal in forma pauperis.

Defendants also request that the Court dismiss Fridman's request for failure to "state a claim on which relief may be granted" as is authorized under 28 U.S.C. § 1915(e)(2)(B)(ii). See Cieszkowska v. Grayline New York, No. 10 Civ. 0128, 2001 WL 1131990, *2 (S.D.N.Y. Sept. 24, 2001). The standard for dismissal of an action or appeal taken in forma pauperis is identical to the standard for dismissal on a motion made pursuant to Fed. R. Civ. P. 12(b)(6). See id. Defendants argue that, because the Court granted summary judgment against Fridman, Fridman failed to state a claim for the relief he now seeks. However, the standard of review under Rule 12(b)(6) does not look to the facts of the case, but considers only the pleadings. See Hishon v. King & Spalding, 467 U.S. 69 (1984) By contrast, here, the Court granted the motion for summary judgment based on the voluminous facts and record that was developed over the course of the lengthy discovery period and submitted to the Court. See Fridman v. City of New York, 183 F. Supp.2d 642 (S.D.N.Y. 2002). Thus, the Court's denial of Fridman's instant application does not rest on that ground.

CONCLUSION

Accordingly, it is hereby

ORDERED that Fridman's application for leave to proceed in forma pauperis is denied.

SO ORDERED.


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