United States District Court, S.D. New York
COLLEEN McMAHON, CHIEF UNITED STATES DISTRICT JUDGE.
brings this pro se action and seeks leave to proceed without
prepayment of fees, that is, in forma pauperis (IFP). On
November 22, 2019, the Court directed Plaintiff to submit an
amended IFP application because, on his initial application,
he indicated that he is unemployed and has no resources,
expenses, or debts, but he failed to explain how he pays for
his living expenses. Plaintiff submitted an amended IFP
application on November 27, 2019, that is virtually identical
to the original one. Plaintiff asserts that he earned $600
per month when he last worked in “12/18, ” but
answers all remaining questions with either a “No,
” or a “0.” (ECF 1:19-CV-10811, 5.)
the IFP statute, 28 U.S.C. § 1915, the Court may allow a
litigant to proceed without prepayment of the filing fees,
that is IFP, upon a showing that he or she is unable to pay
the fees. See 28 U.S.C. § 1915(a)(1). The
statute “insure[s] that indigent persons have equal
access to the judicial system, ” Hobbs v. Cnty. of
Westchester, ECF 1:00-CV-8170, 107, 2002 WL 868269, at
*1 (S.D.N.Y. May 3, 2002), and courts “have broad
discretion to determine whether a litigant has sufficiently
demonstrated poverty, ” Alli v. Moore, ECF
1:14-CV-6597, 60, 2015 WL 5821174, at *1 (S.D.N.Y. Sept. 15,
2015) (citations omitted).
1915(e)(2)(A) provides that the Court shall dismiss a case at
any time if it determines that “the allegation of
poverty is untrue.” The purpose of this provision is to
“weed out the litigants who falsely understate their
net worth in order to obtain [IFP] status when they are not
entitled to that status based on their true net worth.”
Cuoco v. U.S. Bureau of Prisons, 328 F.Supp.2d 463,
467 (S.D.N.Y. 2004) (citations and internal quotation marks
omitted). “Dismissal of a case with prejudice, in the
context of Section 1915, is a harsh sanction that should be
resorted to only in extreme cases.” Choi v. Chem.
Bank, 939 F.Supp. 304, 308 (S.D.N.Y. 1996). A court may
dismiss an action under § 1915(e)(2)(A) if a plaintiff
intentionally omits his financial information in order to
obtain IFP status. See Cuoco, 328 F.Supp.2d at 468
(a person acts in bad faith when he intentionally conceals a
source of income in order to obtain IFP status).
submitted both an IFP application and an amended IFP
application in which he failed to explain how he supports
himself, making it impossible for the Court to determine
whether he is unable to pay the filing fees. At this stage,
it is unclear whether Plaintiff fails to understand the need
to fully explain his financial situation to proceed IFP, or
if he is concealing sources of income in order to obtain IFP
light of Plaintiff's pro se status, the Court
will give him one final opportunity to demonstrate that he is
unable to pay the filing fees. See Tracy v.
Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) (The
solicitude afforded to pro se litigants takes a
variety of forms, including liberal construction of papers,
“relaxation of the limitations on the amendment of
pleadings, ” leniency in the enforcement of other
procedural rules, and “deliberate, continuing efforts
to ensure that a pro se litigant understands what is
required of him”) (citations omitted). Within thirty
days of the date of this order, Plaintiff must either pay the
$400.00 in fees or submit a second amended IFP application.
If Plaintiff submits the second amended IFP application, it
should be labeled with docket number 19-CV-10811 (CM), and
provide facts establishing that he is unable to pay the
relevant fees. Plaintiff must answer each question on the
second amended IFP application, state all sources of income
and all monthly expenses, and describe how he supports
himself. If Plaintiff fails to comply with this order the
action will be dismissed without prejudice. If the Court
grants the second amended IFP application, Plaintiff will be
permitted to proceed without prepayment of fees. See
28 U.S.C. § 1915(a)(1).
Clerk of Court is directed to mail a copy of this order to
Plaintiff and note service on the docket. Plaintiff must
either pay the $400.00 in fees or submit a second amended IFP
application within thirty days from the date of this order.
An IFP application is attached for Plaintiffs convenience.
Court certifies under 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith, and
therefore IFP status is denied for the purpose of an appeal.
Cf. Coppedge v. United States,369 U.S. 438, 444-45
(1962) (holding that ...