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Safran v. Sapio

August 1, 2006

DAVID J. SAFRAN, PLAINTIFF,
v.
JOSEPH SAPIO, ATTORNEY AT LAW, DEFENDANT.



The opinion of the court was delivered by: Neal P. McCURN, Senior Judge

DECISION & ORDER

I. INTRODUCTION

Presently before the Court is a civil rights complaint filed by Plaintiff David J. Safran.*fn1

Dkt. No. 1. Plaintiff, who is incarcerated at Auburn Correctional Facility, also filed an application to proceed in forma pauperis. Dkt. No. 2.

In his complaint, Plaintiff claims that Defendant, his former assigned counsel, failed to provide effective assistance of counsel. Dkt. No. 1, Complaint at pp. 4-5. Plaintiff claims that Defendant "orchestrated" Plaintiff's "illegal" incarceration at Cayuga County Jail from May 24, 2005 to December 14, 2005. Id. at p. 5. Plaintiff also alleges that Defendant failed to file a state petition for writ of habeas corpus, failed to "allow" Plaintiff to sign release papers, and failed to resign after Plaintiff filed a grievance against Defendant. Id. at pp. 4-5. For a complete statement of Plaintiff's claims, reference is made to the complaint.

II. DISCUSSION

Consideration of whether a pro se plaintiff should be permitted to proceed in forma pauperis is a two-step process. First, the Court must determine whether the plaintiff may proceed with the action without pre-paying, in full, the statutory filing fee. The Court must then consider whether the causes of action stated in the complaint are, inter alia, frivolous or malicious, or if they fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. 1915A(b).

A. Application to Proceed in Forma Pauperis

Based upon a review of Plaintiff's in forma pauperis application, the Court finds that Plaintiff has demonstrated sufficient economic need. See Dkt. No. 2.

B. Sufficiency of the Complaint

Since the Court has found that Plaintiff meets the financial criteria for commencing this case in forma pauperis, the Court must consider the sufficiency of the complaint in light of 28 U.S.C. § 1915(e). Section 1915(e) directs that when a plaintiff seeks to proceed in forma pauperis, the Court:

(2) [S]hall dismiss the case at any time if the court determines that -***

(B) the action ... (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. ยง 1915(e)(2)(B). Thus, even if a plaintiff meets the financial criteria to commence an action in forma pauperis, it is the Court's responsibility to determine that a complaint may properly be maintained in this District before it may permit the ...


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