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Bruno v. Social Security Administration

October 4, 2011

BRUNO MAZZEO-UNUM,*FN1 PLAINTIFF,
v.
SOCIAL SECURITY ADMINISTRATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge

REPORT-RECOMMENDATION and ORDER

The Clerk has sent to the Court a Complaint, together with an Application to Proceed In Forma Pauperis (IFP) and a Motion to Appoint Counsel, filed by pro se Plaintiff Mazzeo Unum Rizzo. Dkt. No. 1, Compl; Dkt. No. 2, Mot. for IFP; Dkt. No. 3, Mot. Appt. Cnsl. Because the pleading filed by Plaintiff fails to satisfy basic pleading requirements, as more fully discussed below, this Court recommends dismissal, or, in the alternative, in light of his pro se status, an order be issued directing Plaintiff to file an amended complaint should he wish to avoid dismissal of this action.

I. DISCUSSION

A. In Forma Pauperis Application

Accompanying Plaintiff's Complaint is a Motion for Leave to Proceed with this Action In Forma Pauperis. Dkt. No. 2. That Application is incomplete. In response to Question 3, Plaintiff indicated that he receives money from "a) Business, profession or other self employment", "b) Rent payments, interest or dividends", and "d) Disability or workers compensation payments", yet, he

failed to indicated as required the amount received. Without this information, the Court cannot properly assess his request for in forma pauperis status. Furthermore, if two separate Plaintiffs are included in this action, see supra note 1, then each Plaintiff, unless a minor or otherwise incapacitated, must submit an IFP application on his, or her, own behalf.*fn2

In the event Plaintiff(s) wishes to proceed with this matter IFP, a completed application must be submitted to the Court for review, otherwise, the full filing fee should be submitted to the Clerk of the Court. In the event Plaintiff fails to submit another application for IFP or the full filing fee within thirty days of the filing date of this Report-Recommendation and Order, the Clerk shall forward this matter to the assigned District Judge for dismissal. The Clerk of the Court shall also provide Plaintiff with a blank IFP form.

B. Appointment of Counsel

Plaintiff submitted a Motion for Appointment of Counsel utilizing a Form obtained from the Clerk's Office. Dkt. No. 3. No where on that form does he indicate his specific efforts to obtain counsel from the private/public sector. Instead, he categorically states that he contacted "multiple" attorneys. Such a showing must be made prior to the Court's consideration of a motion to appoint counsel. Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 173-74 (2d Cir. 1989) (quoting Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)). Furthermore, in Terminate Control Corp. v. Horowitz, 28 F.3d 1335 (2d Cir. 1994), the Second Circuit reiterated the factors that a court must consider in ruling upon such a motion. In deciding whether to appoint counsel, the court should first determine whether the indigent's position seems likely to be of substance. If the claim meets this

threshold requirement, the court should then consider a number of other factors in making its determination. Terminate Control Corp. v. Horowitz, 28 F.3d at 1341 (quoting Hodge v. Police Officers, 802 F.2d at 61). Of these criteria, the most important is the merits of the claims, i.e., "whether the indigent's position was likely to be of substance." McDowell v. State of New York, 1991 WL 177271, at *1 (S.D.N.Y. Sept. 3, 1991) (quoting Cooper v. A. Sargenti & Co., Inc., 877 F.2d at 172). Indigents do not have to demonstrate that they can win their cases without the aid of counsel, but, they do have to show likely merit. Id.

This action was only recently commenced. The Court has not yet directed service upon the Defendants, and, as explained more fully below, the Complaint is devoid of any factual allegations. In this regard, Plaintiff does not meet the first requirement imposed by the Second Circuit for applications seeking appointment of pro bono counsel. See Harmon v. Runyon, 1997 WL 118379 (S.D.N.Y. Mar. 17, 1997).

In light of the foregoing, the Court denies Plaintiff's Motion for Appointment of Counsel (Dkt. No. 3) without prejudice.

C. Rules Governing Pleading Requirements Rule 8 of the Federal Rules of Civil Procedure provides that a pleading which sets forth a clam for relief shall contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." See FED. R. CIV. P. 8(a)(2). The purpose of this Rule "is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer [and] prepare an adequate defense." Hudson v. Artuz, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell ...


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