United States District Court, N.D. New York
ANN KLENCHIK, PRO SE FOR PLAINTIFF
ORDER, REPORT, AND RECOMMENDATION
E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
an action brought by pro se plaintiff Judith Ann
Klenchik alleging that the defendants, three individuals
employed at Onondaga Community Living, discriminated against
her on the basis of disability in violation of the Americans
with Disabilities Act ("ADA"), 42 U.S.C. §
12102 et seq. Plaintiff's complaint and
accompanying application for leave to proceed in forma
pauperis ("IFP") were forwarded to me for
review. Based upon that review I determined that her IFP
application was incomplete and denied the request without
prejudice to renewal.
has now submitted an amended IFP motion, and the clerk has
forwarded the matter back to me for review. For the reasons
set forth below, plaintiff's request to proceed IFP is
denied, and I recommend her complaint be dismissed with leave
commenced this action on or about May 23, 2018, by the filing
of a complaint, accompanied by a motion for leave to proceed
without prepayment of the requisite filing fee. Dkt. Nos. 1,
2. After reviewing plaintiff's IFP application, I issued
an order on June 5, 2018, concluding that the IFP application
was incomplete and therefore denying her request for IFP
status and requiring plaintiff to either pay the requisite
$400 filing or submit a revised, complete IFP application.
Dkt. No. 4.
22, 2018, plaintiff filed an amended motion for leave to
proceed IFP, Dkt. No. 5, which has been referred back to me
Plaintiff's IFP Application
civil action is commenced in a 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 she is unable to pay the required filing fee. 28 U.S.C.
§ 1915(a)(1). Pursuant to section 1915, when a plaintiff
seeks leave to proceed IFP, the court must determine whether
she has demonstrated sufficient economic need to proceed
without prepaying the required filing fee. 28 U.S.C. §
decision of whether to grant an application to proceed IFP
rests within the sound discretion of the court. Anderson
v. Coughlin, 700 F.2d 37, 42 (2d Cir. 1983). Section
1915 only provides that a court must be satisfied "that
the person is unable to pay such fees or give security
therefor" prior to granting IFP status. 28 U.S.C. §
1915(a)(1). To make this threshold showing, a plaintiff must
demonstrate "that paying such fees would constitute a
serious hardship on the plaintiff, not that such payment
would render plaintiff destitute." Fiebelkorn v.
United States, 77 Fed.Cl. 59, 62 (Fed. Cl. 2007) (citing
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S.
331, 339 (1948)); see also Potnick v. E. State
Hosp., 701 F.2d 243, 244 (2d Cir. 1983) ("Section
1915(a) does not require a litigant to demonstrate absolute
destitution[.]"); accord, Lee v.
McDonald's Corp., 231 F.3d 456, 459 (8th Cir. 2000).
As the Second Circuit has noted, "no party must be made
to choose between abandoning a potential meritorious claim or
foregoing the necessities of life." Potnick,
701 F.2d at 244 (citing Adkins, 335 U.S. at 339).
amended IFP application indicates that, although she was
unemployed at the time she filed her complaint, she is now
employed in Asheville, North Carolina, and earns an annual
salary of $47, 000. Dkt. No. 5 at 3.
United States Department of Health and Human Services
publishes yearly Poverty Guidelines. Those guidelines reflect
that, for 2018, the poverty threshold for a household of one
is $12, 140.00. See United States Dep't of
Health & Human Servs.,
https://aspe.hhs.gov/poverty-guidelines (last visited July
30, 2018).Based upon the information that plaintiff
has provided, the court is unable to conclude that paying the
fees associated with this lawsuit would impose a serious
financial hardship upon her. It may be that plaintiff is
burdened by liabilities not reflected in her application that
would inform ...