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Perez v. Crook

November 7, 2008

SERGIO PEREZ, PLAINTIFF,
v.
MICHAEL CROOK, PHYSICIAN, MT. MCGREGOR CORRECTIONAL FACILITY, DEFENDANT.



The opinion of the court was delivered by: Gary L. Sharpe, United States District Judge

DECISION AND ORDER

I. BACKGROUND

The Clerk has sent to the Court for review a pro se complaint filed by Sergio Perez, together with an application to proceed in forma pauperis. Dkt. Nos. 1, 2, and 3. In his pro se complaint, plaintiff alleges that the defendant mis-prescribed a medication for plaintiff. Dkt. No. 1. As a result, plaintiff was rushed to a nearby hospital for treatment. Id. Plaintiff also alleges that the defendant refused to prescribe new medication for plaintiff. Id. As a result of defendant's actions, plaintiff has suffered "severe emotional distress and anxiety over his condition" as well as "sleeplessness, anxiety and fear of imminent disability." Id.

II. IN FORMA PAUPERIS STATUS.

Where a plaintiff seeks leave to proceed in forma pauperis, the Court must determine whether the plaintiff has demonstrated sufficient economic need to proceed without prepaying the $350.00 filing fee in full. The Court must also 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)(1).

A. Economic Need

Plaintiff has demonstrated economic need in his application to proceed in forma pauperis. However,plaintiff did not submit a current Authorization Form reflecting his consent to pay the filing fee of $350.00. See Dkt. No. 3. Plaintiff is advised that, in any future action filed in this Court, a current authorization form must accompany his application to proceed in forma pauperis. Accordingly, in light of plaintiff's omission, and the discussion set forth below, plaintiff's application to proceed in forma pauperis will be denied as incomplete without prejudice to renew.

B. Sufficiency of Complaint

Section 1915(e)(2)(B) of Title 28 of the United States Code, which governs proceedings in forma pauperis, directs, in pertinent part, that "the court shall 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. § 1915(e)(2)(B). It is the court's responsibility to determine whether a plaintiff may properly maintain his complaint in this District before the court may permit a plaintiff to proceed with an action in forma pauperis. See 28 U.S.C. § 1915(e)(2).

Moreover, under 28 U.S.C. § 1915A, the Court must review any complaint in a civil action in which a prisoner seeks redress from officers or employees of a governmental agency and "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint ... is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant who is immune from such relief."

28 U.S.C. § 1915A(b); see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir.1999) (per curiam). An action is frivolous as a matter of law when, inter alia, it is based on an "indisputably meritless legal theory" - that is, when it "lacks an arguable basis in law ... or [when] a dispositive defense clearly exists on the face of the complaint." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.1998).

Although the court has the duty to show liberality towards pro se litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), there is a responsibility on the court to determine that a claim is not frivolous before permitting a plaintiff to proceed. See Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (district court may dismiss frivolous complaint sua sponte notwithstanding fact that plaintiff has paid ...


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