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Ricky Lynch, Jerry Finch, Jr., Damien R. Small, Leroy C. Jones v. Vincent F. Demarco

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


June 23, 2011

RICKY LYNCH, JERRY FINCH, JR., DAMIEN R. SMALL, LEROY C. JONES, CHARLES WHIDBEE, THEODORE DAVIS, MACK BUTLER, EDDIE M. SIMS, DALLAS JOHNSON, CHRISTOPHER SYDNOR, DONDI W. JACKSON, FELIPE ROVELO, ROBERT BERNHARD, ADAM WILLIAMS, JOSEPH POTTER, JR., DONALD BANGS, EDWARD KEYES, JASON COOPER, KEVIN M. MASSEY, DARRYL ISSAC,
CALVIN FELDER, ANDREW ZEIGLER,CHESTER INGRAM, DONNELL STENGLE, KEVIN KING, HOWARD DAVIS, AND THOMAS HARPER, PLAINTIFFS,
v.
VINCENT F. DEMARCO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SHERIFF OF COUNTY, JOHN DOE AND JANE DOE, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY AS SUPERINTENDENT OF SUFFOLK COUNTY, DEFENDANTS.

The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM AND ORDER

Presently pending before the Court is the pro se Complaint brought by the above-named twenty-seven incarcerated individuals (collectively, "Plaintiffs") brought pursuant to 42 U.S.C. § 1983 ("Section 1983"), accompanied by applications to proceed in forma pauperis for each individual.*fn1 Upon review of the declarations in support of each application to proceed in forma pauperis, the Court determines that the Plaintiffs' financial status qualifies them to commence this action without prepayment of the $350.00 filing fee. See 28 U.S.C. §§ 1914(a); 1915(a)(1). Therefore, Plaintiffs' requests to proceed in forma pauperis are GRANTED.

Plaintiffs have also moved for certification of their case as a class action. The motion is DENIED. As Plaintiffs are proceeding pro se, they cannot represent anyone other than themselves. See, e.g., Moore v. T-Mobile USA, No. 10-CV-0527 (SLT)(CLP), 2011 WL 609818, *6 (E.D.N.Y. Feb. 15, 2011) ("[Plaintiff] cannot convert this action to a class action because he is proceeding pro se, and a pro se litigant cannot represent anyone other than himself or herself.") (citing Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990)).

Having reviewed the pro se Complaint, the undersigned declines to conclude at this stage that the within action is frivolous or malicious within the meaning of 28 U.S.C. § 1915. While it may be that Plaintiffs are unable to prevail on their claims, the Court's uncertainty does not justify dismissal at this early juncture. McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). Accordingly, the applications to proceed in forma pauperis are GRANTED and the Court orders service of the Complaint without prepayment of the filing fee in total sum of $350.00.

The Clerk of the Court is directed to forward to the United States Marshal for the Eastern District of New York copies of Plaintiffs' Summons, Complaint, and this Order for service upon the Defendants without prepayment of fees. Furthermore, the Clerk must mail a copy of this Order to the Plaintiffs. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).

Central Islip, New York

SO ORDERED.

JOANNA SEYBERT, U.S.D.J.


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