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Anthony v. Fein, Such and Crane, LLC

United States District Court, N.D. New York

April 28, 2015


CHARLES J. ANTHONY, SR. Plaintiff pro se Clay, New York.



Plaintiff Charles J. Anthony, Sr., submitted a pro se complaint against Defendant Fein, Such and Crane, LLC, on April 15, 2015. (Dkt. No. 1.) Plaintiff also submitted an application to proceed in forma pauperis ("IFP application"). (Dkt. No. 2.) Before the Court issued its Order and Recommendation on Plaintiff's IFP application and on its initial review of Plaintiff's complaint, Plaintiff filed a superseding amended/supplemental complaint (Dkt. No. 5) and a second IFP application (Dkt. No. 6), which the Clerk has submitted to the Court for review.[1]


Plaintiff's second IFP application is the same application initially submitted. ( See Dkt. Nos. 2 and 6.) It is a New York State court IFP application form rather than the IFP application used in the Northern District of New York.[2] The application reveals monthly Social Security benefits of $1, 802 and a monthly pension payment of $663.92 for an annual income of $29, 591.04. (Dkt. No. 6 at 1.) Plaintiff has listed no income from other sources. Id. Plaintiff has listed a bank account with approximately $27.00. Id. at 2. For all property with an estimated value over $300.00, Plaintiff has listed two real properties in which he has no equity. Id. One of the properties, located at 4268 Gemini Path, Liverpool, New York, is the subject of the underlying foreclosure action. Id.

Unlike the IFP application used in the Northern District of New York, the New York State IFP application requires that only extraordinary out-of-pocket expenses, not housing, utilities, or loan payments, or other regular monthly expenses be disclosed. Therefore, most of the information on expenses required in the federal IFP application has not been included. Id. Plaintiff has indicated in his State IFP application that he is several months behind in utility bills, he cannot work, and the Gemini Path property is in foreclosure. Id.

Because Plaintiff's application is incomplete in that it fails to include information regarding his regular expenses, the Court cannot determine whether his expenses, when considered with his lack of assets and other circumstances, warrant in forma pauperis status despite the regular monthly income disclosed by him. Nonetheless, because the Court will recommend dismissal of the action on initial review under 28 U.S.C. § 1915(e), the Court grants Plaintiff's second IFP application (Dkt. No. 6) solely for purposes of initial review.


Even when a plaintiff meets the financial criteria for in forma pauperis, 28 U.S.C. § 1915(e) directs that when a plaintiff proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines that... 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)(i)-(iii).

In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). "An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations and internal quotation marks omitted). Although 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), the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).

To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, ... it demands more than an unadorned, the-defendant-harmed-me accusation." Id. In determining whether a complaint states a claim upon which relief may be granted, "the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed "without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).


Plaintiff's original complaint against Defendant Fein, Such and Crane consisted of ...

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