United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR. CHIEF JUDGE.
commenced this action in September 2015 and was represented
by Attorney Raymond P. Kot, II. ECF No. 1. On September 28,
2017, the Court granted Defendants' Motions to Dismiss.
ECF No. 24. Plaintiff filed a Motion for Leave to Appeal
in forma pauperis pursuant to 28 U.S.C. § 1915
and Rule 24 of the Federal Rules of Appellate Procedure. For
the reasons stated below, Plaintiff's Motion is denied
provides, in relevant part, that “a party to a
district-court action who desires to appeal in forma pauperis
must file a motion in the district court.” Fed. R. App.
P. 24(a)(1). However, “[a] party who was permitted to
proceed in forma pauperis in the district-court action
… may proceed on appeal in forma pauperis without
further authorization[.]” Id. at 24(a)(3). The
motion to appeal in forma pauperis must include an
affidavit that: “(A) shows in the detail prescribed by
Form 4 of the Appendix of Forms the party's inability to
pay or to give security for fees and costs; (B) claims an
entitlement to redress; and (C) states the issues that the
party intends to present on appeal.” Id. at
24(a)(1)(A)-(C). “If the district court denies the
motion, it must state its reasons in writing.”
Id. at 24(a)(2).
In Forma Pauperis Determination
bears the burden of establishing his or her indigence.
See Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d
Cir. 1983). “[O]ne [need not] be absolutely destitute
to enjoy the benefit” of the in forma pauperis
statute. Adkins v. DuPont de Nemours & Co., 335
U.S. 331, 339 (1948). Rather, “[a]n affidavit to
proceed in forma pauperis is sufficient if it
indicates that one cannot, because of his poverty, afford to
pay the costs of litigation and still provide himself and his
dependents with the necessities of life.”
Kilichowski v. Hocky, No. 99-CV-2874 JG, 1999 WL
504285, at *1 (E.D.N.Y. July 5, 1999). “If it appears
that an applicant's access to [ ] court has not been
blocked by his financial condition; rather [that] he is
merely in the position of having to weigh the financial
constraints posed if he pursues [his position] against the
merits of his case, then a court properly exercises its
discretion to deny the application.” Fridman v.
City of New York, 195 F.Supp.2d 534, 537 (S.D.N.Y. 2002)
(citing Sears, Roebuck and Co. v. Sears, 686 F.Supp.
385, 385 (N.D.N.Y. 1988), aff'd 865 F.2d 22 (2d
Cir. 1988)) (internal quotations omitted) (alterations in
did not proceed in forma pauperis in the district
court action in this matter. She retained Attorney Raymond P.
Kot, II. ECF No. 30-1 at 1-2. Therefore, Plaintiff requires
authorization to proceed on appeal in forma pauperis
and has moved for such relief, filing a Motion to Proceed
In Forma Pauperis And Supporting Affirmation
(“Motion and Affirmation”). ECF No. 30.
with her Motion and Affirmation, Plaintiff submitted (1) an
affidavit from her attorney, Mr. Kot, (“Attorney
Affidavit”) (ECF No. 30-1) and (2) an affidavit from
Plaintiff (“Plaintiff's Affidvait”) (ECF No.
30-2). The Attorney Affidavit supports Plaintiff's Motion
and Affirmation and indicates that Mr. Kot intends to file a
motion with the Second Circuit for Pro Hac Vice admission
pursuant to Local Rule 46.1(d)(2) if Plaintiff is granted
in forma pauperis status. ECF No. 30-1 at 2. Second
Circuit Local Rule 46.1(d)(2) permits an attorney to seek Pro
Hac Vice admission if he or she is a member in good standing
of a state or District of Columbia bar and acting for a party
proceeding in forma pauperis. Loc. R. 46.1(d)(2).
Affidavit is styled as an “Affidavit in Support of Pro
Hac Vice Motion” and requests that the Second Circuit
grant her attorney's motion for Pro Hac Vice admission-a
motion that Mr. Kot intends to file in the Second Circuit if
the instant motion is granted. ECF No. 30-1 at 2, ¶ 3;
ECF No. 30-2 at 1, 6. Plaintiff's Affidavit contains
additional information regarding her purported indigence that
is not included in her Motion and Affirmation. The only
motion properly before the Court is Plaintiff's Motion
and Affirmation to proceed on appeal in forma
pauperis and the Court will thus consider
Plaintiff's submissions, including Plaintiff's
Affidavit, solely for the purpose of determining whether
Plaintiff qualifies for in forma pauperis status.
who is legally blind, has been employed as a full-time
teacher in the Dekalb County Public School District in Dekalb
County, Georgia since July 31, 2017. ECF No. 30-2 at 3,
¶¶ 8, 10. Plaintiff states that her annual salary
is $51, 000 (ECF No. 30-2 at 3, ¶ 8) but elsewhere
states that her gross monthly wages are only $3, 000 per
month (ECF No. 30 at 1). Between losing her job in April 2014
and her employment by Dekalb County Public Schools in July
2017, Plaintiff was “itinerantly employed as an
independent contractor in the education field.” ECF No.
30-2 at 3, ¶ 6. Plaintiff's income supports her
husband, who is presently unemployed, their three children,
and her mother. ECF No. 30 at 2; ECF No. 30-2 at 3-4,
¶¶ 10-11. Plaintiff states that she has only $25.00
in cash, $40.00 in a checking account, and $0.00 in savings
accounts (ECF No. 30 at 1-2), but that she has other savings
and investments totaling $1, 500 (ECF No. 30-2 at 4, ¶
18). Plaintiff affirms that she and her husband own two
properties: a primary residence in Duluth, Georgia with an
estimated value of $140, 000 and a condominium in Florida
that “costs [Plaintiff and her husband] $2, 000 per
month for mortgage, taxes, and insurance and home owners'
association fees.” ECF No. 30 at 2; ECF No. 30-2 at 4,
¶ 13. She did not provide an estimated value for the
further affirms that her family's current indebtedness is
approximately $1, 000, 000, which includes “all
mortgages, student loans, car payments and other debt.”
ECF No. 30-2 at 5, ¶ 22. This debt includes $72, 000
owed to a medical institution for Plaintiff's four eye
surgeries. ECF No. 30-2 at 5-6, ¶¶ 20, 21. Despite
Plaintiff's substantial debt, the Court finds that
Plaintiff has sufficient resources to proceed without in
forma pauperis status in light of Plaintiff's
current income and property ownership. See United Parcel
Serv. of Am., Inc. v. The Net, Inc., 470 F.Supp.2d 190,
194 (E.D.N.Y. 2007) (finding that the plaintiff had
sufficient resources to proceed without in forma
pauperis status based on his income and ownership of two
houses, despite owing $1, 000, 000 in federal taxes). The
Court finds that Plaintiff is not ...