Chaffee v. Syracuse City School District

• Court: District Court, N.D. New York
• Decided: April 3, 2023
• Docket: 5:22-cv-01077
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________

JENNIFER CHAFFEE, and BRYAN FIDDLER,

Plaintiffs,

v. 5:22-CV-1077 (BKS/ML) SYRACUSE CITY SCHOOL DIST; and FRANKLIN ELEMENTARY SCHOOL,

Defendants. _____________________________________________

APPEARANCES: OF COUNSEL:

JENNIFER CHAFFEE BRYAN FIDDLER Plaintiffs, Pro Se 209 Cogswell Avenue Syracuse, New York 13209

MIROSLAV LOVRIC, United States Magistrate Judge

AMENDED ORDER and REPORT-RECOMMENDATION I. INTRODUCTION Plaintiffs Jennifer Chaffee and Bryan Fiddler (collectively “Plaintiffs”) commenced this civil rights action pro se on October 19, 2022, asserting claims arising from the care of their minor son who was a student at Defendant Franklin Elementary School, within Defendant Syracuse City School District (collectively “Defendants”). (Dkt. No. 1.) Plaintiffs did not pay the filing fee for this action and Plaintiff Chaffee sought leave to proceed in forma pauperis (“IFP”). (Dkt. No. 2.) On February 7, 2023, the undersigned issued a Decision and Order that denied Plaintiff Chaffee’s motion for leave to proceed IFP as incomplete. (Dkt. No. 6.) Plaintiffs were cautioned that, should they “wish to proceed with this action, they must either (i) pay the $402.00 filing fee, or (ii) submit a completed and signed IFP long form application in accordance with this Decision and Order within thirty (30) days.” (Dkt. No. 6 at 4.) In addition, Plaintiffs were advised that “[u]ntil such time as each plaintiff pays the full filing fee or submits a completed IFP application . . . review of the complaint pursuant to Section 1915(e) . . . would be

premature.” (Id. at 3 [citing Sitts v. Weaver, 20-CV-1471, 2021 WL 51411, at *2 (N.D.N.Y. Jan. 6, 2021) (Suddaby C.J.)].) On March 15, 2023—thirty six days after the issuance of the Decision and Order issued on February 7, 2023—the undersigned issued a report and recommendation to Chief United States District Judge Brenda K. Sannes recommending that Plaintiffs’ Complaint be dismissed for failure to pay the required filing fee or to obtain leave to proceed IFP. (Dkt. No. 7.) On March 29, 2023, Plaintiff Chaffee filed an amended application for leave to proceed IFP. (Dkt. No. 8.) II. DISCUSSION

When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $402, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to grant IFP status if it determines that the plaintiff is unable to pay the required fee. 28 U.S.C. § 1915(a)(1).1 Pursuant to 28 U.S.C. § 1915, where a plaintiff seeks leave to proceed

1 The language of that section is ambiguous because it suggests an intent to limit availability of IFP status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts have construed that section, however, as making IFP status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); see also Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002). IFP, the court must determine whether the plaintiff has demonstrated sufficient economic need to proceed without prepaying the required filing fee. 28 U.S.C. § 1915(a)(1). The 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). The 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.l. 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).

“Courts in this Circuit have . . . routinely required each plaintiff in a multi-plaintiff litigation to submit separate and complete applications for IFP status.” Sitts v. Weaver, 20-CV- 1474, 2021 WL 51411, at *2 (N.D.N.Y. Jan. 6, 2021) (Suddaby, C.J.) (citing Razzoli v. Exec. Office of United States Marshals, 10-CV-4269, 2010 WL 5051083, at *3 (E.D.N.Y. Dec. 2, 2010); Amaker v. Goord, 09-CV-0396, 2009 WL 1586560, at *2 (W.D.N.Y. June 4, 2009)). Here, Plaintiff Chaffee’s amended IFP application is complete and demonstrates economic need. (Dkt. No. 8.) As a result, Plaintiff Chaffee’s amended IFP application (Dkt. No. 8) is granted. “Before the Court can review the sufficiency of the complaint pursuant to Section 1915 . . . however, . . . the other plaintiff[] in this action (specifically [Plaintiff Fiddler]) must comply with the statutory filing fee requirements for this action. Until such time as each plaintiff pays the full filing fee or submits a completed IFP application . . . review of the complaint pursuant to Section 1915(e) . . . would be premature.” Sitts, 2021 WL 51411, at *2.

Thus, for this case to proceed, Plaintiff Fiddler must individually, either (a) pay the Court’s filing fee of $402.00 in full, or (b) submit a completed and signed long form IFP application in accordance with this Amended Order and Report-Recommendation. I recommend that, within thirty days from the date of a Decision and Order by the assigned District Judge on this Amended Order and Report-Recommendation, if Plaintiff Fiddler does not fully comply with this Amended Order and Report-Recommendation, he be terminated from the docket and all claims asserted by him be dismissed without prejudice. ACCORDINGLY, it is ORDERED that Plaintiff Chaffee's amended IFP application (Dkt. No. 8) is GRANTED

only for purposes of filing and any appeal unless the trial court certifies in writing that the appeal is not taken in good faith. See 28 U.S.C. § 1915(a)(3); and it is further ORDERED that should Plaintiff Fiddler wish to proceed with this action, he must either (i) pay the $402.00 filing fee, or (ii) submit a completed and signed IFP long form application in accordance with this Amended Order and Report-Recommendation; and it is further respectfully RECOMMENDED that within thirty days from the date of a Decision and Order by the assigned District Judge on this Amended Order and Report-Recommendation, if Plaintiff Fiddler does not fully comply with this Amended Order and Report-Recommendation, he be terminated from the docket and all claims asserted by him be dismissed without prejudice; and it is further ORDERED that upon Plaintiff Fiddler’s compliance or at the expiration of any deadline to comply set forth by the assigned District Judge, the Clerk shall return the file to the Court for further consideration and, if appropriate, review of the complaint in accordance with 28 U.S.C. § 1915(e)(2); and it is further ORDERED that the Clerk of the Court shall file a copy of this Amended Order and Report-Recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules’; and it is further ORDERED that the Clerk shall provide Plaintiff Fiddler with a blank long form IFP application. NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report.?> Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).

Dated: April 3 , 2023 Mirvale-dracr = Binghamton, New York irosiav Lovric U.S. Magistrate Judge 2 The Clerk shall also provide Plaintiffs with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). 3 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). Ifthe last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).

ANTHONY HOPPER, Plaintiff, pro se, 9289, Delaware 2021 WL 51411 . a: . oo County Correctional Facility, 280 Phoebe Ln., Ste. 6, Delhi, Only the Westlaw citation is currently available. NY 13753. United States District Court, N.D. New York. ANTHONY BOYD, Plaintiff, pro se, 7847, Delaware County James C. SITTS, et al., Plaintiffs, Correctional Facility, 280 Phoebe Ln., Ste. 6, Delhi, NY v. 13753. Alan WEAVER and Delaware County Correctional Facility, Defendants. 9:20-CV-1474 (GTS/DJS) DECISION AND ORDER | GLENN T. SUDDABY, Chief United States District Judge Signed 01/06/2021 I. INTRODUCTION Attorneys and Law Firms *1 This action was commenced by eleven pro se incarcerated plaintiffs on or about December 2, 2020, JAMES C. SITTS, Plaintiff, pro se, 8484, Delaware County Correctional Facility, 280 Phoebe Ln., Ste. 6, Delhi, NY pursuant to Pap usc. § 1983 (PSscetion 1983”) against 13753. two defendants. Dkt. No. 1 (“Compl.”). None of the plaintiffs paid the filing fee, and only one plaintiff, plaintiff James C. STEVEN BARROWS, Plaintiff, pro se, 5829, Delaware _ Sitts, submitted an application to proceed in the action in County Correctional Facility, 280 Phoebe Ln., Ste. 6, Delhi, forma pauperis (“IFP”). NY 13753. JULIUS LEONARD, JR., Plaintiff, pro se, 9286, Delaware — []J, DISCUSSION County Correctional Facility, 280 Phoebe Ln., Ste. 6, Delhi, NY 13753. A. Filing Fee Requirements Generally Acivil action is commenced in federal district court “by filing BRYAN RUPLE, Plaintiff, pro se, 1469, Delaware County —_q complaint with the court.” Fed. R. Civ. P. 3. The filing Correctional Facility, 280 Phoebe Ln., Ste. 6, Delhi, NY _ fees must be paid at the time an action is commenced unless 13753. an IFP application is submitted to the Court. 28 U.S.C. § DANIEL SCHULTZ, Plaintiff, pro se, 3889, Delaware 1914(a); Pars u.s.c. § 1915(a). P2scction 1915 of Title County Correctional Facility, 280 Phoebe Ln., Ste. 6, Delhi, 28 of the United States Code (Pasection 1915”) “permits NY 13753. an indigent litigant to commence an action in a federal court NICHOLAS MERIDV, Plaintiff, pro se, 9295, Delaware without prepayment of the filing fee that would ordinarily County Correctional Facility, 280 Phoebe Ln., Ste. 6, Delhi, be charged.” Cash v. Bernstein, No. 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “The purpose of NY 13753. Plog U.S.C. § 1915 is to insure that litigants will not be ROBERT J. GIORDANO, Plaintiff, pro se, 5115, Delaware deprived of access to the judicial system because of their County Correctional Facility, 280 Phoebe Ln., Ste. 6, Delhi, financial circumstances.” Monti v. McKeon, 600 F. Supp. 112, NY 13753. 114 (D. Conn. 1984) (citing Paxarlem River Consumers Co- RICHARD GRANTT, Plaintiff, pro se, 9294, Delaware op, Inc. v. Associated Grocers of Harlem, Inc., 71 F.R.D. 93, County Correctional Facility, 280 Phoebe Ln., Ste. 6, Delhi, 96 (S.D.N.Y. 1976)). Where a plaintiff seeks leave to proceed NY 13753. IFP, the Court must determine whether the plaintiff has demonstrated sufficient economic need to proceed without ROBERT PAYNE, Plaintiff, pro se, 9298, Delaware County Fa Correctional Facility, 280 Phoebe Ln., Ste. 6, Delhi, NY prepaying the filing fee. 1 28 USL. 191S(@)(). [T]he 13753. federal district courts are vested with especially broad discretion to deny state prisoners the privilege of proceeding

IFP in civil actions officials of the institution in which under Pals. tion 1915(b)(1) when multiple inmate-plaintifis 1a. Anderson v. Coughlin, 700 F.2d 37, commence an action. See Palxagan yv. Rogers, 570 F.3d 146 Ir. . (3d Cir. 2009); zoriboune v. Berge, 391 F.3d 852 (7th Cir. 1915, provides, in pertinent part, that an IFP 2004); Pl Hubbard v. Haley, 262 F.3d 1194 (11th Cir. 2001); request must be accompanied by “a certified copy of the Podius v. Fed. Bureau of Prisons, No. 16-CV-6121, 2017 WL trust fund account statement (or institutional equivalent) for 1040372, at *2 (E.D.N.Y. Mar. 16, 2017); Ashford y. Spitzer, the prisoner for the 6-month period immediately preceding No. 08-CV-1036, Dkt. No. 127 (N.D.N.Y. filed Sept. 29, the filing of the complaint wes obtained from the appropriate 2008); 2 but see Pa In re Prison Litig. Reform Act, 105 F.3d official of each prison at which the prisoner is or was 113] 1138 (6th Cir. 1997). Courts in this Circuit have also confined.” al59 U.S.C. § 1915(a)(2). In accordance with routinely required each plaintiff in a multi-plaintiff litigation Rule 5.4 of the Local Rules of Practice for this Court, a to submit separate and complete applications for IFP status. prisoner seeking IFP status in a civil action may satisfy the See, €.g., Razzoli v. Exec. Office of United States Marshals, statutory requirements by submitting a completed, signed, | No. 10-CV-4269, 2010 WL 5051083, at *3 (E.D.N.Y. Dee. and certified IFP application. N.D.N.Y. L.R. 5.4(b)(1)(A). A 2, 2010); Amaker v. Goord, No. 09-CV-0396, 2009 WL “certified” IFP application is one on which the certificate 1586560, at *2 (W.D.N.Y. June 4, 2009). portion, at the bottom of page two of the form, has been completed and signed by an appropriate official at the B. Analvsi plaintiffs facility. The certificate portion of the application 7 ANAUYSIS . . oe As noted above, none of the eleven plaintiffs paid the requests information regarding funds and/or securities held on a account to the inmate's credit over the preceding six months. required filing fee, and only plaintiff Sitts has submitted an Accordingly, inmates requesting IFP status may either submit TP PP eae me Peon ne Ane □□ two a completed, signed, and certified IFP application as provided lai a Sake m np a fi t be N 5 □□ □□ in the local rules, or they may submit certified copies of their Plaintiit sits inst app tea ton (Dkt. °. ) is no account statements for the six-month period immediately complete (because it is neither certified by a prison official nor accompanied by copies of his inmate account statements preceding the filing of a complaint as set forth in section for the previous six months), it is denied. Plaintiffs second 1915(a)(2).! IFP application (Dkt. No. 4), however, is certified by a prison official, and therefore it is complete. Plaintiff Sitts . . . has also filed the inmate authorization form required in this * i hat, “if . . eye 2 Psectio " 1915 also provides ma ua prisoner District. Dkt. No. 3. Accordingly, plaintiff Sitts’ second IFP brings a civil action ..., the prisoner shall be required . application, Dkt. No. 4, is granted. to pay the full amount of a filing fee.” Paz, US.C. § 1915(b)(1). In accordance with the statute, the filing fee Before the Court can review the sufficiency of the complaint i i i fi ilable in the plaintiff . . Is paid over time from. funds aval ab .m ' © plana’ pursuant to section 1915 and/or Section 1915A, however, prison account. In furtherance of this requirement, Rule . . . . . each of the other plaintiffs in this action (specifically plaintiffs 5.4 of the Local Rules of Practice for this Court require . . . . Barrows, Leonard, Ruple, Schultz, Meridv, Giordano, Grantt, all inmates to submit, in addition to a fully completed . . Lo. . . . Payne, Hopper, Boyd) must comply with the statutory filing IFP application, the inmate authorization form issued by . . . . . the Clerk's Office. ND.NY. LR. 5.4(b). The inmate fee requirements for this action. Until such time as each BN laintiff the full filing f bmit □□□□□□□□□ authorization form authorizes periodic withdrawals in respect vom Pays ° mg or ms 86 p . . _ IFP application and inmate authorization form, review of of the filing fee and acknowledges the inmate-plaintiff's obligation to pay the entire filing fee “regardless of the — the complaint pursuant to PZscction 1915(e) and/or Section outcome of the lawsuit.” 1915A would be premature. Although the Second Circuit has not addressed the issue, *3 Thus, for this case to proceed, plaintiffs Barrows, most courts have not reduced or eliminated the obligation | Leonard, Ruple, Schultz, Meridv, Giordano, Grantt, Payne, imposed on each incarcerated plaintiff to pay the filing fee Hopper, Boyd must individually, within 30 days of the date of this Decision and Order, either (a) pay the Court's filing fee

of $402.00 in full, or (b) submit a completed and signed IFP _ that prison rules and/or regulations inhibit plaintiffs’ abilities application in accordance with this Decision and Order and a to correspond with one another, they are directed to utilize the signed inmate authorization form reflecting his consentto pay —_ available prison procedures to seek and obtain the necessary the $350.00 filing fee over time, in installments. > Plaintiffs permission to communicate with each other. © Plaintiffs are are advised that, if any of them does not fully comply with — hereby warned that the Court will not serve a filing made by this Decision and Order within 30 days, the non-complying __ one plaintiff on the remaining plaintiffs. individual will be terminated from the docket and all claims asserted by that non-complying individual will be dismissed *4 Third, the Prison Litigation Reform Act of 1996 without prejudice without further Order from the Court. (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners Upon full compliance with this Decision and Order, or at the to maintain federal lawsuits, expressly provides that “[n]o expiration of the 30-day time period to comply, whichever is _ action shall be brought with respect to prison conditions under earlier, the Clerk shall return the action to the Court. [S]ection 1983 ..., or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” TT. MULTI-PLAINTIFF LITIGATION fa fa Because this lawsuit has been commenced by multiple 42 U.S.C. § 1997e(a); see also I Ross v. Blake, 136 8. plaintiffs who are all incarcerated, the Court takes this Ct 1850, 1856 (2016) (analyzing whether prisoner-plaintiff opportunity to notify plaintiffs of certain rules and obligations exhausted his administrative remedies pursuant to the PLRA's that are applicable to them while pursuing this action. exhaustion requirement). Palscction 1997e(a)’s exhaustion provision is mandatory and applies to all inmate lawsuits Furst, the Court notes that only one of the plaintitts in this regarding the conditions of their confinement. Paros, 136 action, James C. Sitts, has signed the complaint. See Compl. at 12. Rule 11 of the Federal Rules of Civil Procedure, however, S. Ct. at 1856; □□ voodford vy. Ngo, 548 U.S. 81, 84 requires that all plaintiffs sign “[e]very pleading, written (996). Pl poyier y, Nussle, 534 US. 516, 524, 532 (2002): motion, and other paper.” Fed. R. Civ. P. 11(a). Plaintiffs are not, and will not be, relieved of this obligation in the event PS yvittiams v. Corr. Officer Priatno, 829 F.3d 118, 122 (2d that one or more of them is released or becomes confined ina Cit. 2016). In the event a defendant establishes that the different correctional facility than the other plaintiff. Because #mate-plaintiff failed to fully comply with the administrative anon-attorney is not permitted to represent anyone other than Process prior to commencing an action in federal court, the himself, see Pa Tannaccone y. Law, 142 F.3d 553, 558 (2d Cir. plaintiffs complaint is subject to dismissal. Pa yoodford. 548 1998), Rule 11 protects against one plaintiff becoming ade —_—*U.S. at 93; see also Wilson v. McKenna, 661 F. App'x 750, facto representative of his co-plaintiffs. In addition, adherence 752 (2d Cir. 2016). In the same way that each plaintiff in to this rule in a multi-plaintiff action serves to ensure that __ this action is required to separately comply with the filing each pro se plaintiff is on notice of the facts, issues, and fee requirements for commencing this action (as discussed obligations of the parties that arise throughout the litigation. above in Part IIB. of this Decision and Order), each plaintiff The Court will promptly deny any request that is not signed is required to separately exhaust the available administrative by all plaintiffs, or, if the filing requests no relief, the Court remedies before commencing an action in federal court under may strike it without consideration of the merits. * the PLRA. See, e.g., Lilly v. Ozmint, No. 07-CV-1700, 2007 WL 2021874, at *2 (D. S.C. July 6, 2007) (‘Just as payment Second, Rule 5 of the Federal Rules of Civil Procedure of one fee does not cover multiple plaintiffs under the PLRA, requires that each plaintiff must serve his co-plaintiffs with all exhaustion of administrative remedies by one prisoner does documents or motions filed with the Court or any discovery not meet the exhaustion requirement for all the plaintitis. . . . Each individual plaintiff is required to comply with the material (including responses to discovery requests) provided to the defendants. Fed. R. Civ. P. 5(a)(1): 5 Pa Swenson exhaustion requirement.” (citing Paporter, 534 USS. at 524; y. MacDonald, No. 05-CV-0093, 2006 WL 240233, at *3 PS Woodford, 548 US. at 90)). (D. Mont. Jan. 30, 2006). Plaintiffs are not relieved of this obligation simply because they are incarcerated. To the extent

Fourth, Rule 20 of the Federal Rules of Civil Procedure, which is the rule that allows plaintiffs to join in this single action, is inherently permissive. See Fed. R. Civ. P. 20 (statute IV. CONCLUSION WHEREFORE, it is hereb entitled “Permissive Joinder of Parties”). / Rule 21 of the TS TOY Federal Rules of Civil Proced di th issi □□ ppa: valine of Rule 20, providing courts the authority 10 sua ORDERED that plaintiff Sitts’ first IFP application (Dkt. No. ss y □ 2) is DENIED as incomplete; and it is further sponte or on motion “add or drop a party” at any time “on just terms.” Fed. R. Civ. P. 21. Accordingly, although the ete ORDERED that plaintiff Sitt d IFP applicat Dkt. Court is not severing plaintiffs’ claims at this time, plaintiffs . “pam . secon application ( . No. 4) is GRANTED; and it is further should be aware that, at any time, the Court may do so, including for reasons of judicial efficiency and fairness to all ORDERED that, before the Court reviews the sufficiency parties. See, e.g., Lopez v. City of Irvington, No. 05-CV-5323, 2008 WL 565776, at *2 (D. NJ. Feb. 28, 2008) (“Rule [21] of the complaint pursuant to Pog U.S.C. § 1915 and/or may ... be invoked to prevent prejudice or promote judicial 28 U.S.C. § 1915A, plaintiffs Barrows, Leonard, Ruple, efficiency.”); Steward v. Mississippi, No. 07-CV-0184, 2007 — Schultz, Meridv, Giordano, Grantt, Payne, Hopper, Boyd WL 4375210, at *2 (S.D. Miss. Dec. 12, 2007) (citing the | must individually, within 30 days of the date of this Decision Court's inherent power to control its docket and Rule 21 —_and Order, either (a) pay the Court's filing fee of $402.00 in as grounds for severing the claims asserted by multiple full or (b) submit a completed and signed IFP application in . accordance with this Decision and Order and a signed inmate laintiffs); A JY, ee ey 308 eee □ Ion ca Pindhom Assos authorization form reflecting his individual consent to pay the intli . . u . oo D1 as authorizing courts fo sever claims for “su Wieiont other $350.000 filing fee over time, in installments; and it is further besides i joi Rule 20). □□ aye . . . reasons” besides improper joinder under Rule 20) ORDERED that if, within the time period specified above, any of the plaintiffs fail to comply with the terms of this Fifth, to the extent that plaintiffs are attempting to commence Decision Order delineated ove the non-compliant a class action, it is well settled that class actions cannot be Loe . . ° P . maintained by a pro se litigant because (as noted above) non- individual will be terminated from the docket and any claims attorneys ney ee te voce anvone other than themselves asserted by that non-compliant individual will be dismissed y y P y ves. from the action without prejudice without further Order annaccone, 142 F.3d at 558; see also Miller v. Zerillo, of this Court; and it is further No. 07-CV-1719, 2007 WL 4898361, at *1 (E.D.N.Y. Nov. 2, 2007) (citing cases and recommending denial of class | QRDERED that, upon full compliance with this Decision certification without prejudice until an attorney makes an —_ and Order, or at the expiration of the deadline to comply, appearance). Until such time as a motion seeking certification whichever is earlier, the Clerk shall return this file to the Court of the class has been filed demonstrating that the requirements for further review; and it is further of 23 of the Federal Rules of Civil Procedure have been satisfied, the complaint shall be considered as an action ORDERED that, in accordance with the Rule 10.1(¢)(2) of brought jointly by plaintiffs in their individual capacities Court's Local Rules, plaintiffs shall promptly notify the under Rule 20 Clerk's Office and all parties or their counsel, in writing, of any change in their address. Plaintiffs’ failure to do so may *5 In light of the foregoing, the Court hereby notifies result in the dismissal of this action; and it is further plaintiffs that, as alternative to proceeding jointly in this multi-plaintiff lawsuit, any of them may proceed with ORDERED the Clerk shall serve a copy of this Decision and litigation independent of the other plaintiffs in a separate Order, as well as a blank IFP application and blank mmate action. If any plaintiff wishes to do so, he must (1) commence authorization form, on each plaintiff (except plaintiff Sitts) in a new action by filing a separate complaint and complying accordance with the Local Rules of Practice for this Court. with the filing fee requirements as discussed above in Part II of this Decision and Order; and (2) file a notice of voluntary IT IS SO ORDERED. dismissal in this action in accordance with Rule 41 of the Federal Rules of Civil Procedure. Attachment

UNITED STATES DISTRICT COLRE INMATE AUTHORIZATION NORTHERN DISTRICT OF NEW YORK I, authorize the agency halding me in custody to send to the Clerk of the United States District Court for the Northern District of New Plaintiffs) APPLICATION TO PROCEED York ("Clerk"), at his request, certified copies of statements of my trust fund account (or WITHOUT FULL PREPAYMENT os at OF FEES IN ACTIONS COMMENCED institutional equivalent) at the institution where | am currently incarcerated. PURSUANT TO42 U.S.C. § 1983 If | have not been incarcerated at my current place of confinement for at least six Defendant(s) CASE NUMBER: (8) months, | authorize such agency to provide said Clerk, at his request, with copies of such account statements from the institution(s) in which | had previously been I, , declare that lam (check appropriate box} incarcerated | further request and authorize the agency holding me in custody to calculate, plaintiff’movant cathe encumber and/or disburse funds from my trust fund account (or institutional equivalent) in the above-entitled proceeding and that, in support of my request to proceed without in the amounts specified by 28 U.S.C. §1915(b). This authorization is furnished in prepayment of tees or costs under 28 U.8.C. § 1915, declare that | am unable to pay the costs of connection with the commencement of the civil action submitted herewith (ar noted these proceedings and that [arm entitled to the relief sought in the complainv'motion. . . □ below), and | understand that the total filing fee which | am obligated to pay is $350.00. In support of this application, | answer the following questions under penalty of perjury | also understand that this fee will be debited from my account regardless of the Are you currently incarcerated? 4 Yes 2 No (if “ne,” go to Question outcome of my lawsuit, This authorization shall apply to any other agency into whose No 2) custody | may be transferred. state the place of your incarceration = = Signature: Are you employed at the institution? Oo Wes o Noe □□□□□□□□□□□□□□□□□□□□□□□□□□□□ saurenipboss “ %* NOTE: You must sign your name on the above line.* Do you receive any payment from same? oo Yes oNe USE ONLY — (RITE BELOW 1 Notice to Inmates: ‘The Certificate Portion OF This Affidavit ‘lust Re Completed Ln on om: ee ee Be TEs Le Accordance With Rule 5.4(b)i1)(4) OF The Local Rules OF Practice For This Court OR Vou Must Include, Along With This Affidavit, Name and DIN Number: Certified Copies OF Your Inmate Account Statement For The Last Six Civil action number: Months In Accordanes With 28 LS.C, § 1915 (a2) Short name of case: 2 Are you currently employed? 0 Yes aNe a Ifthe answer is “yes,” state the amount of your take-home salary or wages and pay period and give the name and address of your employer b Tf the answer is “no,” state the date of your last employment, the amount of your take-home salary or wages, and the name and address of your last employer FORM G 3 In the past twelve months have you recerved any money from any of the following Sources? . . All Citations a Business. prefession, or other self-employment O Yes aNe b vments crest. or dividends Yes SN : I Rent payments, interest, or dividends oY o Slip Copy, 3021 WL 5 1411 Pensions, annuities, or life insurance payments D Yes No d Disability or workers compensation payments Oo Yes e Gifts or inheritances Yes aoNo Any oller sources Yes aNe Ifthe answer to any of the abowe is “ves,” desenbe cach source of money and state the amount received and what you expect you will continue to recelwe. (Attach additional pages if necessary.) 4 Do vou have any cash, checking, or savings accounts? o Yes oNo state the total amount 5 Do you own any real estate, stocks, bonds, secunties, other financial instruments automobiles or any other assets? OD Yes No deseribe the property and state its value. (Attach additional pages if necessary.) 6 List the person(s) who are dependent on you for support, state your relationship to each person, and indicate how much you contribute to their suppart. (Attach additional pages if necessary. under penalty of perjury that the above information is true and correct DAT SIGNATUBE OF APPLICANT CERTIFICATE (Tobe completed by appropriate offictal at insticution of imcarceranon) Toentify that the applicant mmed herein bas the sam of $ on account to histher credit at (name of Ins that the applicant has the following secunnes histher credit certify that dining the peel six inoalhe the applicant's average balance was . DATE SIGNATURE OF AUTHORIZED OFFICER

Footnotes

1 Upon compliance with the filing fee requirements, the Court must consider plaintiff's request to proceed IFP in light of the “three strikes” provision of P2section 1915(g) and, if appropriate, review the sufficiency of the complaint in accordance with P2section 1915(e) and/or 28 U.S.C. § 1915A (“Section 1915A’). 2 The proper application of the requirement set forth in P@lsection 1915(b)(1) that each prisoner plaintiff who seeks IFP status be required to pay “the full amount of the filing fee” to an action brought by multiple plaintiffs was discussed at length in Ashford. See Ashford, No. 08-CV-1036, Dkt. No. 127 at 3-9. “Absent specific instruction from the Second Circuit, and after reviewing the decisions of the various Circuits that have addressed the issue, th[e] Court f[ound] that those cases concluding that prisoners may file joint actions but must each pay the full filing fee appear to be better reasoned.” Ashford, No. 08-CV-1036, Dkt. No. 127 at 9. 3 The total cost for filing a civil action in this Court is $402.000, which consists of the civil filing fee of $350.00, 28 U.S.C. § 1914(a), and an administrative fee of $52.00. A party granted IFP status is not required to pay the $52.00 administrative fee. A prisoner granted IFP status, however, is required to pay, over time, the full amount of the $350.00 filing fee regardless of the outcome of the action. Plog U.S.C. § 1915(b)(3). 4 An exception to Rule 11’s requirement that every plaintiff sign each motion filed with the Court is an application to proceed in the action IFP, which shall be signed only by the plaintiff seeking IFP status. 5 In particular, Rule 5 provides, in relevant part, as follows: (1) In General. Unless these rules provide otherwise, each of the following papers must be served on every party: (A) an order stating that service is required; (B) a pleading filed after the original complaint, unless the court orders otherwise under Rule 5(c) because there are numerous defendants; (C) a discovery paper required to be served on a party, unless the court orders otherwise; (D) a written motion, except one that may be heard ex parte; and (E) a written notice, appearance, demand, or offer of judgment, or any similar paper. Fed. R. Civ. P. 5(a)(1). 6 This Decision and Order shall not be construed as authorizing plaintiffs to correspond with one another in any manner that would violate prison rules and/or regulations. 7 In relevant part, Rule 20 provides as follows: (1) Plaintiffs. Persons may join in one action as plaintiffs if: (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action.

End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works. 2010 WL 5051083 BACKGROUND Only the Westlaw citation is currently available. NOT FOR PUBLICATION Plaintiff Kevin Razzoli is a frequent litigator in this Court and United States District Court, other District Courts, and his litigation history was previously E.D. New York. summarized in Razzoli v. U.S. Parole Commission, et al., No. 10-—CV-—1842 (CBA) (docket no. 16). The instant case Kevin RAZZOLI, Philip Barrios, David seeks certification as a class action pursuant to □□□□□□ 23 Sunday, Joseph Barrafato, Anothony of the Federal Rules of Civil Procedure and includes the Scalfine, and Milton Morales, Plaintiffs, names and signatures of Philip Barrios, David Sunday, Joseph V. Barrafato, Anothony Scalfine, and Milton Morales, other EXECUTIVE OFFICE OF U.S. MARSHALS, Executive inmates housed at the MDC. These additional plaintiffs have Office of F.B.L, Executive Office of Federal Bureau not filed applications to proceed in forma pauperis or the of Prisons, and Unknown Federal Agents, Defendants. prisoner authorizations required under the Prison Litigation Reform Act. No. 10-CV-4269 (CBA). | The complaint alleges that the MDC limits inmates' access to Dec. 2, 2010. the courts by only permitting two and one-half to three hours . per week of monitored legal research, including typewriter Attorneys and Law Firms 4. . access, and by not providing carbon paper. The complaint Kevin Razzoli, Brooklyn, NY, pro se. alleges that this “violates ‘p’ rule or creating a conflict of interest.” (Compl. at 9)! The MDC is alleged to have Philip Barrios, Brooklyn, NY, pro se. employed “ ‘Mkultra/Bluebird’ now known as ‘chirp’ ” . and data-mining techniques using “thermal gamma imagetry Avid Sunday, Brooklyn, NY, pro se. equiptment” [sic ]. (Compl. at 11.) The complaint also alleges Joseph Barrafato, Brooklyn, NY, pro se. that the “computer law library does not list judges' opinions correctly and court decisions are altered in some cases dealing Anthony Scalfini, Brooklyn, NY, pro se. with BOP, U.S. Marshals and other DOJ agencies.” (Compl. at 18.) Milton Morales, Brooklyn, NY, pro se. The complaint further alleges that plaintiffs “have been denied Sunday mass by Protestant and Jewish chaplain(s) MEMORANDUM & ORDER [;] ie.: manditory [sic ] Sunday Catholic mass.” (Compl. □ at 18.) In addition, the complaint alleges that each of the AMON, District Judge. original named plaintiffs has attempted to resolve different *1 Plaintiff Kevin Razzoli (“Razzoli”), who is currently problems through administrative remedies, but has received incarcerated at the Metropolitan Detention Center (“MDC”), — 7° Tesponse. (Compl. at 3, 16.) Plaintiff Razzoli alleges bring this pro se Civil Rights Complaint, ostensibly as a that his warrant application incorrectly listed his race as “class action” on behalf of himself, five other named plaintiffs “Black” and that the MDC “has tried to say he has mental (the “additional plaintiffs”), and “known + unknown fed. problems without court hearing or N.Y. State licensed + military inmates et al.” Razzoli's request to proceed in psye[h]ologist.” (Compl. at 10; see also Compl. at 18.) He further alleges that: “Razzoli ... is beimg arbitrarily denied forma pauperis pursuant to U.S.C. § 1915 is granted. visits and access to e-mail by not allow[ing] such to leave For the reasons set forth below, the complaint is dismissed _ingtitution to attorney and future wife.... Denied to have with respect to the United States Marshals Service, the children against Catholic rights and Sunday mass.” (Compl. Federal Bureau of Investigations, and the Bureau of Prisons at 17.) Inmate David Sunday is alleged to have been arrested (the “agency defendants”) with leave to submit an amended _ on the basis of false statements by government informants or complaint within 30 days from the date of this Order. agents. (Compl. at 12.) Inmate Philip Barrios arrived at MDC

on March 29, 2010, “and his ‘halfway house’ paperwork “A document filed pro se is to be liberally construed, and a 10% date has ‘not’ been started nor attempt to be started, | pro se complaint, however inartfully pleaded, must be held which violates ‘court's ruling and BOP 13 month policy.’ to less stringent standards than formal pleadings drafted by ” (Compl. at 13.) Inmate Anthony Scalfini was “denied □□ ers» Pllzpickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. to be housed with his *co-defendants’ to marshal a proper 41.97. 167 Ed.2d 1081 (2007) (internal quotation marks and defense.” (Compl. at 14.) Inmate Milton Morales claims to □□□ . . . : : citations omitted). If a liberal reading of the complaint “gives have a valid actual innocence claim for a pending writ of any indication that a valid claim might be stated,” this Court habeas corpus. (Compl. at 15.) must grant leave to amend the complaint. See P2cuoco v. *2 The complaint secks a series of injunctions, including: “oritsugu, 222 F.3d 99, 112 (2d Cir.2000). and appointment of lawyer” (Compl. at 9), “injunction ... for Catholic Sunday mass and release” (Compl. . . . . os B, Class Action Certification at 10), “injunction ... to cease and desist” (Compl. at 11), “injunction pursuant to 28 U.S.C. § 1331” (Compl. at 16, Plaintiffs seek class certification pursuant to PZRute 23 of the 17), “imjunction to cease religious genocide/Catholic mass Federal Rules of Civil Procedure. “[B]ecause pro se means on Sunday(s) and [manditory] [sic ] observance of Catholic to appear for one's self, a [pro se litigant] may not appear Church” (Compl. at 19). Italso seeks $10 million in damages on another person's behalf.” Pa annaccone y. Law, 142 F.3d (Compl. at 12), BeCESS to law library typewriters and legal 553, 558 (2d Cir.1998); see also Daniels v. Niagara Mohawk books, tnal by jury, discovery, monetary damages, and an sor Corp., No. 04-CV-734S (SC), 2004 WL 2315088, ‘end to mkultra/now Known a[s] chirp/ and cowboy program/ at *1 (W.D.N.Y. Oct.12, 2004) (“[N]on-attorneys cannot SERE program” (Compl. at 19). represent anyone other than themselves and cannot prosecute class actions on behalf of others.”). Thus, “[i]t is well settled Finally, the complaint seeks class certification, citing Rule in this circuit that pro se plaintiffs cannot proceed as class 23(b) and “class action case law, Carter v. Ridge, 1997 representatives.” McLeod v. Crosson, No. 89 Civ.1952, 1989 Dist. LEXIS 20516, 1997 WL 523787.” The cited case WL 28416, at *1 (S.D.N.Y. Mar.21, 1989); see also Johnson held that: “a class action should not be maintained by pro vy. Newport Lorillard, No. 01 Civ. 9587(SAS), 2003 WL se litigants who cannot adequately represent and protect 169797, at *1 n. 4 (S.D.N-Y. Jan.23, 2003) (“It is plain error the interests of the class, Parca R.Civ.P. 23(a)(4), but also for a P ve se inmate to Tepresent other inmates in a class because, even if plaintiffs had counsel, the court does not action. (quotation omitted). Accordingly, plaintiffs’ request believe that they can now describe with any specificity the for class certification is denied. actual parameters of a class which shares common questions of law or fact. F Fed R.Civ.P. 23(a)(2).” Carter. Ridge, No. C. Plaintiffs Barrios, Sunday, Barrafato, Scalfini, and CIV. A. 97-5414, 1997 WL 792967, at *3 (E.D.Pa. Dec.19, Morales 1997). *3 Although inmates Barrios, Sunday, Barrafato, Scalfini, and Morales signed the complaint, they did not file applications to proceed in forma pauperis or prisoner DISCUSSION authorization forms. P28 U.S.C. § 1915(a)(2) and □□□□□ requires a “prisoner” to file an in forma pauperis application A, Standard of Review and a copy of his prisoner authorization form, and to pay the Title 28 of the United States Code, § 1915A requires this filing fee. Where there are multiple prisoner plaintiffs, each Court to review the complaint in a civil action in which a must comply with the above cited provisions. See Amaker prisoner seeks redress from a governmental entity or from v. Goord, No. 09-CV—-0396A(Sr), 2009 WL 1586560, at *2 officers or employees thereof, and to “identify cognizable (W.D.N.Y. June 04, 2009) (citing cases). claims or dismiss the complaint, or any portion of the complaint, if the complaint ... fails to state a clam upon — Accordingly, the Clerk of the Court is directed to forward which relief may be granted.” 28 U.S.C. § 1915A(b); see to each of plaintiffs Barrios, Sunday, Barrafato, Scalfini, also P@Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.2007), □□ Morales an application to proceed in forma pauperis and a prison authorization form. Plaintiffs Barrios, Sunday,

Barrafato, Scalfini, and Morales are directed to submit within on the use of a prison law library. See Pa Lewis, 518 US. 30 days separate applications to proceed in forma pauperis and separate prison authorization forms. Failure to comply — at 351-52; PE Morello, 810 F.2d at 347 (inmates' access to with this order will result in the dismissal of the additional | courts may be “shaped and guided by the state”); Jermosen plaintiffs’ claims. v. Coughlin, No. 89 Civ. 1866, 1995 WL 144155, at *5 (S.D.N.Y. Mar.30, 1995) (“[I[nterferences that merely delay an inmate's ability to work on a pending cause of action or to D. Improper Defendants communicate with the courts do not violate this constitutional Civil actions alleging violations of constitutional rights are right.”). cognizable under Pay. U.S.C. § 1983 if defendants are state *4 To state a claim for denial of access to the courts, actors and pursuant to PS Bivens v. Six Unknown Named 4 pjaintiff must allege that the defendant “took or was Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 gesponsible for actions that ‘hindered [a plaintiff's] efforts S.Ct. 1999, 29 L.Ed.2d 619 (1971), when defendants are federal agents. As plaintiffs are presently incarcerated in a to pursue a legal claim.” » PS Monsky . Moraghan, 127 federal facility, and as plaintiffs name as defendants federal F3d 243, 247 (2d Cir.1997) (quoting PE, wis, 518 US. agencies and “unknown federal agents,” the Court construes —at 351). The plaintiff must also show that the defendant's the complaint as raising claims pursuant to Bivens. The actions resulted in actual injury, “such as the dismissal of agency defendants named in the Complaint, however, are . 4 a not amenable to suit. “Absent a waiver, sovereign immunity an otherwise meritorious legal claim. Cancel v. Gord, . . . 35 No. 00 Civ.2042, 2001 WL 303713, at *4 (S.D.N.Y. Mar. 29, shields the Federal Government and its agencies from suit. v. Meyer, 510 US. 471, 475, 114 S.Ct. 996, 127 2001: see also Penis, 518 US. at 351-52; Monsky, 127 308 (1994), Plaintiffs’ Bivens claims must be brought 34 #2467 2d Cir 1997). Here, Razzoli does not allege any against the individual officials responsible for the alleged facts pertinent to the injury he may have suffered. deprivations of rights, not against the federal government . . □ or the agencies where they are employed. Accordingly, the With respect to Razzoli’s claim regarding the denial of offices of the United States Marshals Service, the Federal access to a religious service, his allegation that he was Bureau of Investigations, and the Bureau of Prisons are “denied Sunday mass by protestant and Jewish chaplain(s) dismissed as defendants. is conclusory. The complaint, however, could be asserting a claim under the First Amendment's Free Exercise Clause. E. Claims by Plaintiff Razzoli In light of the plaintiff's pro se status, the Court grants leave Plaintiff Kevin Razzoli~ alleges constitutional claims arising to amend the Complaint. PE Cuoco v. Moritsugu, 222 F.3d from the alleged impairment of his access to the prison 99, 112 (2d Cir.2000) (explaining that if a liberal reading library and the alleged denial of access to catholic mass. * of a complaint “gives any indication that a valid claim With respect to Razzoli's claims involving the prison law ‘Might be stated,” a court should grant leave to amend the library, Razzoli alleges that the MDC has impaired his access complaint before dismissing). The amended complaint must to the courts by limiting and monitoring library time and &Me proper defendants who may be held liable for the typewriter and computer access. The Constitution guarantees _—_lleged impairment of access to the prison law library and prisoners meaningful access to the courts, and one way of the denial of access to Catholic mass. Even if Razzoli does achieving that end is through reasonable access to a law not know the names of these individuals, he may name them as John Doe Correctional Officer or Jane Doe Chaplain or library. See PEL ewis v. Casey, 318 U.S. 343, 351, 116 S.Ct. the like. He should include as much identifying information 2174, 135 L.Ed.2d 606 (1996); PS pounds y. Smith, 430 as possible, including the positions and roles of the officials 817, 825-28, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); involved, and should specify how each defendant may have ore llo v. James, 810 F.2d 344, 347 (2d Cir.1987), violated his rights with respect to his claims. The complaint However, the Constitution does not require unlimited and should also include allegations of fact regarding the alleged unsupervised access to a law library at the demand of a violations, such as the dates on which Razzoli was allegedly prisoner. Prison officials may impose reasonable restrictions

denied religious worship and whether he filed administrative in accordance with this Order. The amended complaint must regarding such denial. be captioned, Amended Complaint,” and shall bear the same docket number as this Order. No summons shall issue at this time, and all further proceedings shall be stayed for 30 days. CONCLUSION The Court certifies pursuant to Palos USC. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in For the reasons stated, Razzoli's request to proceed in forma forma pauperis status is denied for purpose of an appeal. See pauperis is granted. Plaintiffs' request for class certification Pa Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. is denied. Plaintiffs Barrios, Sunday, Barrafato, Scalfini, 917, 8 L.Ed.2d 21 (1962). and Morales are directed to submit within 30 days separate applications to proceed in forma pauperis and separate prison *5 SO ORDERED. authorization forms. Failure to comply with this order will result in the dismissal of the additional plaintiffs' claims. As to the agency defendants, the complaint is dismissed for failure —_—Alll Citations to state a claim, pursuant to 28 U.S.C. § 1915A, but plaintiffs are granted leave to file within 30 days an amended complaint | Not Reported in F.Supp.2d, 2010 WL 5051083

1 As the complaint is not consecutively paginated, the Court refers to the page numbers assigned by the Electronic Case Filing System. 2 To the extent plaintiffs other than Kevin Razzoli intended to bring the following claims, any amended complaint should so specify. 3 Razzoli's claims regarding his ongoing incarceration are barred by Pal Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), as applied to Bivens actions by Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir.1995), and are accordingly dismissed. Under Heck, a prisoner is not allowed to pursue a claim for money damages where success on that cause of action would necessarily imply the invalidity of his confinement. Palyeck, 512 U.S. at 486-87. “Federal courts have held that Heck applies to ... actions that challenge the fact or duration of confinement based on the revocation of parole.” Davis v. Cotov, 214 F.Supp.2d 310, 316 (E.D.N.Y.2002) (collecting cases). Accordingly, Razzoli's claims arising from the revocation of his parole are dismissed. Plaintiff Razzoli is, of course, entitled to challenge the fact of his confinement pursuant to a writ of habeas corpus, as indeed Razzoli has done in this instance. See Razzoli v. U.S. Parole Commission, et al., No. 10-CV—1842 (CBA). Likewise, Razzoli’s claims regarding “mKultra/Bluebird” and the use of “Thermal Gamma _ Imagetry Equiptment [sic]” are devoid of merit and are accordingly dismissed. See PF penton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992) (“[A finding of] factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible whether or not there are judicially noticeable facts available to contradict them.”); see also Razzoli v. United States Navy et al., No. 09 Civ. 4323, 2010 WL 1438999, at *3 (S.D.N.Y. Apr. 12, 2010) (finding inter alia, that petitioner's allegations that the government used thermal gamma imagery to sterilize him are frivolous).

End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.

2009 WL 1586560 INTRODUCTION Only the Westlaw citation is currently available. United States District Court, *1 Plaintiff, Anthony Amaker, who is currently incarcerated W.D. New York. at the Southport Correctional Facility, ' initially brought this Anthony D. AMAKER, Grace Amaker, Shaheen action under Pay. USC. § 1983 on behalf of himself and Amaker, Phyllis Amaker, Booker Amaker, Shaniev various family members, in the United States District Court AH Amaker, Deloris Amaker, Lissette Amaker, Batise for the Southern District of New York. He alleges, inter alia, Amaker, and All Those Similarly Situated, Plaintiffs excessive force and denial of adequate medical treatment on > > > October 6 and October 20, 2004, while at the Great Meadow v. Correctional Facility (Docket No. 7, Part 1, Complaint, JJ 6- Comm. G.S. GOORD, L.J. Leclaire, Dr. L.N. Wright, 7); retaliation, in the form of the filing of a false misbehavior Supt. J. Conway, Supt. G. Greene, Supt. M. McGinnis, report arising out of the October 6, 2004 assault and use Dep. Supt. J. Chappius, C.O. W. Huffer, Sgt. K. of excessive force, which also is somehow alleged to be Hendry, C.O. J. Rando, C.O. W. Rogoza, C.O. related to some unspecified United States Department of Gilbert, C.O. Ayers, C.O. Pierson, Cho Harvey, B. Labor complaint or report (ibid.); a denial of due process Harder, R. Brandt, Sgt. P. Gavigan, Zimmerman, J. during the Superintendent's Hearing held in relation to the Whiteford, Dept. Supt. R. James, L. Vough, D Selsky, assault of October 6, 2004 and resulting misbehavior report L. McNamara, K. Washburn, Paribella, Seymore, Dhier, (id., 4 9-10); religious and racial discrimination relating J. Judasz, Schuck, W. Hays, J. Mootz, . Dolce, C.J. to the denial of eight days of Ramadan meals at the Attica . . Correctional Facility and three days of Ramadan meals upon Martinez, R. Chistensen, and Kolowski, Defendants. . . . his transfer to Southport (id., § 10); excessive force on No. 09-CV_-0396A(Sr). or about November 13, 2004, and the denial of adequate | medical care at the Southport Correctional Facility for the June 4, 2009. period of January through September 16, 2005 (d., JQ □□□ 12); interference with Anthony Amaker's ability to receive Attorneys and Law Firms documents relating to a state court petition (id., □□□□ and a myriad First Amendment violations relating to the removal Anthony D. Amaker, Pine City, NY, pro se. of names of Anthony Amaker's family members, who are . also Plaintiffs here, from his approved call list, which has Grace Amaker, East Windsor, NY, pro se. . . . caused him and his family members a great deal of stress Shaheem Amaker, Trenton, NJ, pro se. and emotional damage because many of his family members had been forced to travel long distances to see him, some Phyllis Amaker, East Windsor, NY, pro se. of whom cannot travel easily, and their inability to visit has resulted in defendants and others subjecting Anthony Amaker Booker Amaker, Deltona, FA, pro se. to, or targeting him for, racial oppression and gang assaults Shaniev Ah Amaker, Trenton, NY, pro se. (id., 18). Plaintiffs also allege that defendants Nuttal, Goord and LeClaire have conspired with MCI/Verizon to charge Deloris Amaker, New York, NY, pro se. Anthony Amaker or his family members “outlandish” fees and he thus was unable to communicate with his family Lissette Amaker, pro se. members. ~ (d.) Suffice to say, the Complaint is not a model Batise Amaker, Brooklyn, NY, pro se. of clarity and is, for the most part, difficult to understand as to what allegedly occurred, when and where it occurred, and which defendants are alleged to have performed the acts claimed to be constitutional deprivations. DECISION AND ORDER WILLIAM M. SKRETNY, District Judge.

As noted, the Southern District's initial 30 Day Order, filed DISCUSSION February 23 and entered February 26, 2009, directed each Plaintiff to file IFP Applications and, if any of the Plaintiffs Prior to transferring the action to this Court on the basis that | Were currently incarcerated, a Prison Authorization Form, a substantial part of the events or omissions giving rise to the pursuant to Pal5¢ U.S.C. § 1915(b), within 30 days of claims occurred at the Attica, Southport and Great Meadow the Order. (Docket No. 7, Part 2, 30 Day Order, at 1). Correctional Facilities, two of which are located within this _pjaintiff Anthony Amaker is the only Plaintiff who submitted District, the Southern District ordered each Plaintiffto submit [Fp application and Prison Authorization Form prior a Complaint with original signatures, * aseparate Application — to the transfer of this action. He also submitted a letter to Proceed Jn Forma Pauperis (“IFP Application”), and to the Southern District, filed March 16, 2009, asking for a Prison Authorization Form for each Plaintiff currently an extension of time until April 8, 2009, to submit the incarcerated. (Docket No. 7, Part 7, Transfer Order at 1-2; other Plaintiffs' original signatures. The letter is ambiguous, Docket No. 7, Part 3, 30 Day Order). That Court had ordered however, as to whether he was requesting, on behalf of the each Plaintiff to sign a copy of the signature page of the other Plaintiffs, an extension of time to submit their IFP Complaint. (Docket No. 11). At the time of transfer of this Applications as ordered by the Southern District. (Docket No. action, only one Plaintiff had submitted an IFP Application 7, Part 3). The letter notes that he is “currently enclosing and Prison Authorization Form, Anthony Amaker, and the the requested In Forma Pauperis [Application] and prison Court had received back from Plaintiffs the signature page of | authorization form. I will need to know whether Shaheem the Complaint * which contained what appeared to be original + Amaker [who is currently incarcerated in New Jersey] must signatures of all but two of the Plaintiffs, Shaniev Amaker fill one out, and I am mailing out a form to [Plaintiff] Grace and Lissette Amaker. (Docket No. 7, Part 7, Transfer Order, at D- Amaker to provide him with and fill out.” (/d., at 2-3). 5 oe . The Southern District left to this Court the determination It appears that Anthony Amaker may have believed that of whether Plaintiffs should be permitted to proceed in forma , . IFP applications were required only for the other Plaintiffs pauperis pursuant to Plog U.S.C. § 1915(a). who are prisoners. That is not the case, however. The Southern District granted the request for an extension of *2 Following the transfer of this action, Plaintiff Anthony time for each Plaintiff to comply with its 30 Day Order. Amaker filed a Motion for a Temporary Restraining Order _ Thereafter, the action was transferred to this Court on April (“TRO”) and Preliminary Injunction, and Declaration in 23, 2009, “[d]espite plaintiff Anthony Amaker's omissions,” Support. ° (Docket Nos. 8-9). For the following reasons, each Which presumably refers to the failure to submit separate Plaintiff, other than Anthony Amaker, will be provided one IFP Applications for each Plaintiff, and Prison Authorization last opportunity to submit an IFP Application, as previously | Forms for each Plaintiff currently incarcerated. (Docket No. ordered by the Southern District, and Anthony Amaker's 7, Part 7, Transfer Order, at 2). To date, no Plaintiff, other than Motion for a TRO and Preliminary Injunction is denied | Anthony Amaker, has submitted an IFP application. without prejudice. This Court finds, as did the Southern District, that each Plaintiff, prisoner or not, must file an IFP application. A. In Forma Pauperis Applications Accordingly, before this case can proceed as to any Plaintiff other than Anthony Amaker, each Plaintiff must, as ordered 1. Anthony Amaker . bby the Southern District, submit by July 15, 2009, a Because Anthony Amaker has submitted an IFP Application oe □ ; □ separate Application to Proceed In Forma Pauperis, and, and a Prison Authorization (Docket No. 7, Part 5), and has met the statutory requirements, he is granted permission for each Plaintiff who is a “prisoner,” see us.c. § Fa 1915(h), a separate Prison Authorization form. Stated another to proceed in forma pauperis pursuant to 1°28 U.S.C. § way, and as previously ordered by the Southern District, 1915(a). “{s]hould [each] plaintiff[ ] decide to proceed with this action, they must submit ... [a] separate IFP application[ |] and a Prisoner Authorization form for each plaintiff who is 2. Other Plaintiffs

incarcerated ....” ® (Docket No. 7, Part 2, 30 Day Order, at 1- 2). [A]n order pursuant to [Fed.R.Civ.P.] *3 The Clerk of the Court shall forward to each Plaintiff 57, 65(a)(1)(2), (b), (d): Paritle 28 an Application to Proceed In Forma Pauperis and Prison US.C. § § 2201: 2202: the Religious Authorization Form. The Prisoner Authorization Form needs Land Use & Institutionalized Person to be submitted by only those Plaintiffs who are also prisoners, but each Plaintiff must submit their own IFP Act of 2000, Partie 42 USC. § Application. A Plaintiff's failure to submit an IFP Application 2000ce; United States Constitution and, if a prisoner, a Prison Authorization Form, by July 15, Article I, § 8, Cl. 3; Article I, § 8, 2009, will result in the dismissal of this action as to him or cl. 8; Article VI, § 2; The Second her without prejudice and without further order or notice from Chance Act, Title 42 U.S.C. 17501 ... the Court. If any of the Plaintiffs have not complied with this to prevent destruction and confiscat order by July 15, 2009, the Clerk of the Court is directed [ion] mail, drawings, illustration, legal to dismiss them as a party to this action without prejudice, documents through the mail and without further order. disrupting commerce and the free exercise of religion practice, financial There is an additional matter to be addressed with regard business and publishing of A frocentric to the family member Plaintiffs. It is evident to the Court books based on content and viewpoint that Anthony Amaker has prepared the initial pleadings and discrimination, other papers in this action and is directing this litigation on behalf of all of the Plaintiffs. For example, the recently submitted Motion for a TRO and Preliminary Injunction is *4 (Docket No. 9, Declaration in Support, at 1-2). signed only by him and he is the only one to submit a Declaration in support of the Motion. While there is no “rule” The Court notes initially that the TRO and Preliminary that prohibits one pro se plaintiff from directing litigation | Injunction is sought against a number of DOCS supervisory brought by himself and others, it is clear that one pro se officials who are not named as defendants in this matter litigant cannot appear on another person's behalf. This seems —Fischer, Napoli, Bartlett, Bezio and Covent [sic]— to be what Anthony Amaker is attempting to do here. Each = but are claimed to be “successors” to some of the Plaintiff must therefore understand, and is hereby placed on supervisory officials that are named in the Complaint—e.g., notice, that by signing the signature page of the Complaint and Goord, McGinnis, McNamara, Selsky, and Chappius. 10 The filing an IFP Application each is acknowledging that (1) they —_ injunction is sought against at least two supervisory officials have agree to proceed as a Plaintiff in this matter pro se, (2) who are named in the Complaint—LeClaire and Washburn. they must represent and appear on behalf of themselves in this matter, and (3) Anthony Amaker cannot act as their attorney First, this Court finds that Anthony Amaker has not or on their behalf in this matter. See Fed.R.Civ.P. 11; ” see, established the criteria for the granting of a TRO Tannaccone, 142 F.3d at 558 (A non-attorney pro and Preliminary Injunction, see Fed R-CivP, □□□□□□ se party may not represent another's interest). Each Plaintiff PEA socul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d must be aware of his or her obligations under Fed.R.Civ.P. 11 Cir. 1985), Pa Paulsen v. County of Nassau, 925 F.2d 65, 68 to sign each pleading and paper submitted to the Court and to (2d Cir.1991), because he has not established, among other appear on behalf of themselves in this action. things, a likelihood of success on the merits. Moreover, the Motion seeks relief from what appear to be allegations of B. Anthony Amaker's Motion for a Temporary the withholding of mail privileges among Anthony Amaker Restraining Order and Preliminary Injunction and Grace Amaker and censorship relating to the publication Plaintiff Anthony Amaker's Motion for a TRO and and sale of children's books that Anthony Amaker writes and Preliminary Injunction seeks his mother, Grace Amaker, illustrates. These allegations are not in any way connected to the allegations set forth in the Complaint.

The Complaint, as summarized above, see Introduction, ORDER supra, at 1-2, alleges a number of acts and constitutional violations including excessive force and assault, denial | IT IS HEREBY ORDERED that each Plaintiff, other than of medical care, a denial of due process, religious and © Anthony Amaker, must submit an Application to Proceed Jn racial discrimination, and a conspiracy among a number of — /orma Pauperis and, if a prisoner, a Prison Authorization, by defendants and MCI/Verizon to remove Anthony Amaker's July 15, 2009; family members from his approved phone call list and to charge exorbitant fees. To the extent the Complaint FURTHER, that if any Plaintiff, other than Anthony Amaker may implicate mail privileges at all, it is with regard doesnot submit to the Court by July 15, 2009, an Application to Anthony Amaker's receipt of documents relating to a ‘© Proceed In Forma Pauperis and, if a prisoner, a Prison state court petition. The Complaint does not allege that Authorization Form, the Clerk of the Court is directed to mail privileges were withheld so as to censor or obstruct dismiss them as a party to this action without prejudice and Anthony Amaker's ability to write and publish children's Without further order or notice; books, which is the gravaman of the Motion for a TRO and Preliminary Injunction. The Complaint's allegations of First *35 FURTHER, that plaintiff Anthony Amaker is granted Amendment violations are pleaded in terms of retaliation Permission to proceed in forma pauperis; and agamst Anthony Amaker, not in terms of some restraint on his mail in order to foreclose his attempts to publish children's © FURTHER, that Plaintiff Anthony Amaker's Motion for a books. Accordingly, the Motion for a TRO and Preliminary | TRO and Preliminary Injunction (Docket No. 8) is DENIED, Injunction (Docket No. 8) is denied without prejudice. without prejudice. If Plaintiffs wish to pursue the relief set forth in the Motion for © SO ORDERED. a TRO and Preliminary Injunction they may file an amended or supplemental Complaint pursuant to Fed.R.Civ.P. 15(a) +e and (d), which includes the allegations and claims for relief set forth in the Motion. All Citations Not Reported in F.Supp.2d, 2009 WL 1586560

1 He was incarcerated at Shawangunk when he filed this action. 2 The Court notes some inconsistency with respect to Anthony Amaker's claim that his family members were removed from his phone list and his inability to communicate with his family members because of outlandish telephone charges. 3 See Fed.R.Civ.P. 11(a) (“[e]very pleading, written motion, and other paper shall be signed by at least one attorney of record ... or, if the party is not represented by an attorney, shall be signed by the party.”) See also FP jannaccone v. Law, 142 F.3d 553, 558 (2d Cir.1998) (A non-attorney pro se party may not represent another's interests.) (citation omitted). 4 At the time of receipt of the file from the Southern District the signature page had not been docketed but it has now been docketed.

5 The Transfer Order notes that the Complaint (Docket No. 7, Part 2) was received on October 7, 2008, and that at the time the Complaint was submitted it already bore a stamped date of July 3, 2007, “from a Pro Se Office.” (Docket No. 7, Part 7, Transfer Order, at 1, n. 1). The Transfer Order also notes that a letter submitted by Anthony Amaker alleges that he had previously “attempted to submit the Complaint through his mother's lawyer, but it had been returned to him for lack of original signatures.” The Southern District had no record of having received previously the Complaint on July 3, 2007. (/d.) In a letter later submitted by Anthony Amaker, wherein he requested an extension of time to comply with the Southern District's 30 Day Order (Docket No. 7, Part 3), he alleges that the signatures on the complaint were the original signatures “on the “original submitted Complaint back in October 2007,” but that, as directed by the Court, he had mailed the signature page of the Complaint to Florida to be signed by the other Plaintiffs again. He claims that the Complaint's signature page was previously signed by the Plaintiffs wnen he submitted the Complaint originally back in 2007. 6 Anthony Amaker notes that he first filed this Motion with the Southern District but upon notification of the transfer of this action here, he re-submitted the Motion to this Court and that the Memorandum of Law originally submitted with the Motion in the Southern District will be forwarded to this Court upon its receipt from the Southern District. 7 Following receipt of the remaining IFP Applications, the Court will review or “screen” the Complaint pursuant to Pllzg U.S.C. § § 1915(e)(2)(B) and 1915A. 8 Plog U.S.C. § 1915(a)(2) and P61) requires a “prisoner’ to file an IFP application and copy of his inmate account statement (Prisoner Authorization Form), and to pay the filing fee. Therefore, as directed by the Southern District, each prisoner plaintiff herein must file a separate IFP Application and Prison Authorization form. Compare Boribourne v. Berge, 391 F.3d 852 (7th Cir.2004) (multiple prisoner plaintiffs may join claims in a single action but each must file a separate IFP Application and pay filing fee pursuant to Pas 1915(b)), with Pl -ubbard v. Haley, 262 F.3d 1194 (11th Cir.2001) (mandatory provision of Pals 1915(b) disallows the filing of a single action by multiple prisoner plaintiffs). See also Purifoy v. Kelley, (NO. CIV 08- CV-581-DRH, 2009 WL 535947 (S.D.III., March 04, 2009) (If plaintiffs, each “prisoners” as defined in Pals 1915(h), seek to proceed in forma pauperis, each must file a separate motion, accompanied by a certified copy of his prison trust fund account statement), Madden v. Jackson, No. 5:08CV00090 SWW/BD, 2008 WL 1930517, at *2 (one of the prisoner/plaintiffs failed to file a separate application to proceed IFP as required by Pals 1915(b)(1)); Horton v. Evercom Inc., NO. 07-3183-SAC; 2008 WL 45738 (D.Kan., January 02, 2008) (“Courts examining the impact of multiple plaintiffs on this statutory requirement have decided that prisoner plaintiffs may not undermine this statutory obligation by joining in the filing of a single action, and have held that each prisoner plaintiff must pay the full district court filing fee.”); cf. Sisneroz v. Ahlin, No. 1:08-cv— 01358-SMS PC, 2009 WL 224899 (E.D.Cal., 2009) (plaintiffs, civil detainees, are not “prisoners” under Pals 1915(h), and each filed separate applications to proceed in forma pauperis.) 9 Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions (a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name—or by a party personally if the party is unrepresented... (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper— whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. (c) Sanctions. (1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.... (2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion. (3) On the Court's Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b). (4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation. (5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction: (A) against a represented party for violating Rule 11(b) (2); or (B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned. (Emphasis in italics supplied). 10 While Fed.R.Civ.P. 25(d) provides that a public officer who is a party in an official capacity who ceases to hold public officer is automatically substituted as a party by his successor, the defendants herein are not sued solely in their official capacity. End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.