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Demuth v. Chenango County Dept of Social Services

United States District Court, N.D. New York

July 30, 2018






         Plaintiff Michael A. Demuth, a prisoner in the custody of the Chenango County Sheriff, has filed this civil rights action against the Chenango County Department of Social Services, the City of Norwich, and individuals employed by Chenango County. Currently before the court is plaintiff's renewed application to proceed in the action without prepayment of the required filing fee and his motion for the appointment of pro bono counsel. For the reasons set forth below, both requests are denied.

         I. BACKGROUND

         Accompanying plaintiff's complaint, which was filed on or about June 28, 2018, was a request to proceed in the action in forma pauperis ("IFP") and a motion for the appointment of pro bono counsel. Dkt. Nos. 2, 3. Because the court determined plaintiff's IFP application to be incomplete, the action was administratively closed on July 2, 2018. Dkt. No. 5. Plaintiff was notified that, in order for the action to proceed, he must either pay the full filing fee or submit a completed IFP application that has been certified by an appropriate official at the prison facility in which he is currently housed. Id. Plaintiff thereafter filed a renewed motion for leave to proceed IFP on or about July 18, 2018. Dkt. No. 6. The clerk has forwarded that application, as well as plaintiff's request for the appointment of counsel and the complaint, to me for review.


         A. Plaintiff's IFP Application

         When a civil action is commenced in federal district court, the statutory filing fee, currently set at $400, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed IFP if it determines that he is unable to pay the required filing fee. 28 U.S.C. § 1915(a)(1).[1] The governing federal statute provides, in pertinent part, that an application for IFP status must be accompanied by "a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of each prison at which the prisoner is confined." 28 U.S.C. § 1915(a)(2). In accordance with the local rules of practice for this court, a prisoner seeking IFP status in a civil action may satisfy this requirement by submitting a completed, signed, and certified IFP application.[2] N.D.N.Y. L.R. 5.4(b)(1)(A). Rule 5.4 of the local rules further provides that if the prisoner fails to fully comply with the above-described requirements after being informed by court order of what is required, "the Court shall dismiss the action."[3] N.D.N.Y. L.R. 5.4(b)(2)(A).

         In this case, plaintiff's IFP application was completed and signed by plaintiff before a notary public. Dkt. No. 6. Although the certificate portion of the application has been completed by plaintiff, it has not been certified by an appropriate official at plaintiff's facility, nor have copies of plaintiff's inmate account statements been provided.[4] Id. As a result, plaintiff's IFP application is incomplete and must be denied. In light of plaintiff's pro se status and his efforts to comply with the filing fee requirements, the court will afford him another opportunity to do so. If plaintiff fails to timely comply, I will recommend to the assigned district judge that this action be dismissed without prejudice.

         B. Plaintiff's Motion for the Appointment of Counsel

         Plaintiff has requested that an attorney be appointed to assist in the prosecution of his claims against the defendants. Dkt. No. 3. District courts are afforded broad, though not limitless, discretion in determining whether to appoint counsel to represent indigent civil litigants. 28 U.S.C. § 1915(e)(1); see also Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir.1986). In Hodge, the Second Circuit noted that, when exercising that discretion, the court should first determine whether the indigent's position seems likely to be of substance. Hodge, 802 F.2d at 60. If this threshold requirement is satisfied,

the court should then consider the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in th[e] case why appointment of counsel would be more likely to lead to a just determination.

Hodge, 802 F.2d at 61-62; see also Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d ...

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