United States District Court, N.D. New York
MICHAEL A. DEMUTH, Plaintiff,
CHENANGO COUNTY DEPT OF SOCIAL SERVICES, et al., Defendants.
PLAINTIFF: MICHAEL A. DEMUTH, PRO SE CHENANGO COUNTY JAIL
DECISION AND ORDER
E. PEEBLES, CHIEF U.S. MAGISTRATE JUDGE
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.
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.
Plaintiff's IFP Application
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). 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. 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." N.D.N.Y. L.R. 5.4(b)(2)(A).
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. 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.
Plaintiff's Motion for the Appointment of
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
Hodge, 802 F.2d at 61-62; see also Terminate
Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d