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Bey v. Milano

United States District Court, N.D. New York

December 27, 2019

FRITZ BEY, Plaintiff,
PHILIP J. MILANO, et. al., Defendants.



          Hon. Andrew T. Baxter U.S. Magistrate Judge.

         The Clerk has sent to the court a complaint filed by pro se plaintiff Fritz Bey. (Dkt. No. 1). Plaintiff Bey has also filed an application to proceed in forma pauperis (“IFP”) (Dkt. No. 2). Plaintiff purports to bring this action pursuant to 18 U.S.C. § 241, 242, 246. (Complaint (“Compl.”) ¶ II(A)). Plaintiff also appears to ask this court, inter alia, to enjoin a state court criminal action against him, and grant him damages against defendants Philip Milano and Brian Haller, two police officers, and defendant Deborah J. Young, “Judge.” (Compl. ¶ IV; Exhibit 1 at CM/ECF pp.8-16).

         I. IFP Application

         A. Legal Standards

         In order to proceed IFP in federal court, the court must be satisfied by plaintiff's affidavit that he is unable to pay the “cost of these proceedings.” (Dkt. No. 2 at 1); 28 U.S.C. § 1915. “‘The purpose of 28 U.S.C. 1915 is to ensure that litigants will not be deprived of access to the judicial system because of their financial circumstances.'” Deep v. Bowles, No. 1:09-MC-73, 2010 WL 11526763, at *1 (N.D.N.Y. Mar. 19, 2010) (quoting Monti v. McKeon, 600 F.Supp. 112, 114 (D. Conn. 1984) (citing Harlem River Consumers Co-op, Inc. v. Associated Grocers of Harlem, Inc., 71 F.R.D. 93, 96 (S.D.N.Y. 1976)). Whether to grant an application to proceed IFP rests within the sound discretion of the court. Id. (citing Monti, 600 F.Supp. at 113).

         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.'” Tucker v. United States, 142 Fed.Cl. 697, 707 (Fed. Cir. 2019) (quoting Fiebelkorn, 77 Fed.Cl. at 62); Deep, 2010 WL 11526763, at *1 (quoting Fiebelkorn v. U.S., 77 Fed.Cl. at 62 (citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)). When considering a motion filed pursuant to § 1915(a), “‘[t]he only determination to be made by the court . . . is whether the statements in the affidavit satisfy the requirement of poverty.'” Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004) (quoting Watson v. Ault, 525 F.2d 886, 891 (11th Cir. 1976)) (alteration in original). “Such an affidavit will be held sufficient if it represents that the litigant, because of his poverty, is unable to pay for the court fees and costs, and to support and provide necessities for himself and his dependents.” Id. The Second Circuit has stated that, “‘[n]o party must be made to choose between abandoning a potential meritorious claim or foregoing the necessities of life.'” Id. (quoting Potnick v. Eastern State Hosp., 701 F.2d 243, 244 (2d Cir. 1983) (citing Adkins, 335 U.S. at 339)).

         B. Application

         In this case, plaintiff has chosen not to properly answer any of the questions in the form-application to proceed IFP. The first question asks whether plaintiff is incarcerated. (Dkt. No. 2 ¶ 1). Plaintiff has answered “N/A.” The court assumes that this notation indicates that plaintiff believes that the answer to this question is “not applicable.” If plaintiff were incarcerated, he would have to submit his prison account statements, together with an authorization form, allowing the court to deduct the partial payment fee from his facility account. If plaintiff is no longer incarcerated, he may proceed without submitting such documents[1] and without paying a partial fee. Thus, the question on the IFP application regarding current incarceration is applicable and should be answered.

         Plaintiff has also answered “N/A” to whether he is employed, and if so, how much money he makes, and he has answered “no” to the question asking whether he received money from “any other” listed sources in the past 12 months. (Dkt. No. 2 ¶¶ 2, 3). Plaintiff has answered “N/A” to the question asking whether he has money in a checking or savings account, and if so, how much money he has. (Dkt. No. 2 ¶ 4). The form also asks whether the plaintiff has any assets of value, debts, expenses, or financial obligations. (Dkt. No. 2 ¶¶ 5, 6, 8). To the first two paragraphs, plaintiff states:

The constitution states that the right of the people to be secure in their persons papers and effects shall not be violated. Meaning we have the right to privacy. This information is irrelevant in regards to the courts proceeding Pro Bono. HR 25 as of March 22, 2018 stated that the USD has lost 96% of value. Meaning I cannot pay and [sic] fee in USD.

(Compl. ¶¶ 5, 6). In response to the question regarding financial obligations, plaintiff states:

All debts belong to the United States Corporation (28 U.S.C. 3002(15)(A)) see title 12 U.S.C. 411.

         Plaintiff has essentially failed to properly answer most, if not all, of the questions in the IFP application, and it appears that he has done so intentionally. Clearly, he wishes this court to allow him to proceed without payment of fees, but refuses to “demonstrate” that he is entitled to do so as the law requires. He wishes to have the court adjudicate his claims, but refuses to abide by the rules which govern the process. Plaintiff's responses leave this court unable to determine whether plaintiff is financially eligible to proceed IFP. Because the ...

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