Miliano v. Best Care Inc.

UNITED STATES DISTRICT COURT For OnlineC LPEu RbKli cation Only EASTERN DISTRICT OF NEW YORK 2:42 pm, Sep 26, 2024 -----------------------------------------------------------------X U.S. DISTRICT COURT MARCIA MILIANO, EASTERN DISTRICT OF NEW YORK LONG ISLAND OFFICE Plaintiff, ORDER -against- 24-CV-6641 (JMA)(SIL) BEST CARE INC., Defendant. ----------------------------------------------------------------X AZRACK, United States District Judge: Before the Court is an application to proceed -in -fo-rm--a -pa-u-p-e-ri-s (“IFP”) filed by Plaintiff Marcia Miliano, acting pro se, together with her complaint against her former employer, Best Care, Inc. (ECF Nos. 1-2.) For the below reasons, the application to proceed IFP is denied without prejudice and with leave to renew upon filing, within fourteen (14) days, the AO 239 Long Form IFP application (“Long Form”) attached to this Order. Alternatively, Plaintiff may remit the $405.00 filing fee.

To qualify for IFP status, the Supreme Court has long held that “an affidavit is sufficient which states that one cannot because of his poverty pay or give security for the costs [inherent in litigation] and still be able to provide himself and dependents with the necessities of life.” Adkins v. E.I. Du Pont De Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotation marks omitted).

The purpose of the statute permitting litigants to proceed IFP is to ensure that indigent persons have equal access to the judicial system. Davis v. NYC Dept. of Educ., 10-CV-3812, 2010 WL 3419671, at *1 (E.D.N.Y. August 27, 2010) (citing Gregory v. NYC Health & Hospitals Corp., 07-CV-1531, 2007 WL 1199010, at *1 (E.D.N.Y. Apr. 17, 2007)). The determination of whether an applicant qualifies for IFP status is within the discretion of the district court. DiGianni v. Pearson Educ., 10-CV-0206, 2010 WL 1741373, at *1 (E.D.N.Y. Apr. 30, 2010) (citing Choi v. Chemical Bank, 939 F. Supp. 304, 308 (S.D.N.Y. 1996)). The court may dismiss a case brought by a plaintiff requesting to proceed IFP if the “allegation of poverty is untrue.” 28 U.S.C. § 1915(e)(2)(A).

Plaintiff’s application raises more questions than it answers. Plaintiff reports that she or anyone else living in her household has not received income of more than $200 from any source in the past twelve months and that she does “not have any funds saved.” (IFP App., ECF No. 2, ¶¶ 3-4.) However, Plaintiff reports regular monthly expenses for items including her mortgage, utilities, credit card payments, and insurance that total $29,193. (Id. ¶ 5.) Further, Plaintiff reports owning a car but does not include expenses associated therewith other than car insurance. (Id. ¶¶ 5-6.) In addition, Plaintiff reports having four children who are financial dependents; yet, has not provided the amount she contributes towards their support as the question requires.1 (Id. ¶ 7.)

Given that Plaintiff has provided incomplete information, the Court finds that Plaintiff can best provide her current financial situation on the Long Form. Accordingly, the application to proceed IFP is denied without prejudice and with leave to renew on the Long Form. See Fridman v. City of N.Y., 195 F. Supp. 2d 534, 537 (S.D.N.Y. 2002) (“If it appears that an applicant’s access to court has not been blocked by his financial condition; rather that he is merely in the position of having to weigh the financial constraints posed if he pursues his position against the merits of his case, then a court properly exercises its discretion to deny the application.” (internal quotation marks and alterations omitted)); Piniero v. Comm’r of Soc. Sec., No. 23-CV-8226, 2023 WL

8461690, at *2 (E.D.N.Y. Nov. 27, 2023) (denying IFP motion with leave to renew on the Long Form). Plaintiff is directed to complete and return the Long Form2 or to remit the $405.00 filing fee within fourteen (14) days of the date of this Order.3 If Plaintiff does not timely comply with this Order, the Court may dismiss the complaint without prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore, should Plaintiff seek leave to appeal in forma pauperis, such status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

The Clerk of the Court is respectfully directed to mail a copy of this Order to Plaintiff at her address of record and to note such mailing on the docket.

SO ORDERED.

/ s / J M A Dated: September 26, 2024 JOAN M. AZRACK Central Islip, New York UNITED STATES DISTRICT JUDGE