Claudio v. Hickey

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________

CECILIA S. CLAUDIO,

Plaintiff, 5:24-CV-0758 v. (DNH/ML)

PATRICK HICKEY; THE CITY OF WATERTOWN; WATERTOWN POLICE; SHERIFF; STATE POLICE; CITY COUNCIL; and NEIGHBORHOOD WATCH,

Defendants. _____________________________________________

APPEARANCES: OF COUNSEL:

CECILIA S. CLAUDIO Plaintiff, Pro Se 656 Mill Street Watertown, New York 13601

MIROSLAV LOVRIC, United States Magistrate Judge

DECISION and ORDER I. INTRODUCTION Plaintiff Cecilia S. Claudio (“Plaintiff”) commenced this action pro se on June 11, 2024, by the filing of a complaint. (Dkt. No. 1.) Plaintiff did not pay the filing fee for this action and sought leave to proceed in forma pauperis (“IFP”). (Dkt. No. 2.) The undersigned denied Plaintiff’s IFP application as incomplete. (Dkt. No. 4.) On July 2, 2024, Plaintiff filed an amended IFP application. (Dkt. No. 5.) For the reasons set forth below, Plaintiff’s amended IFP application is denied. II. PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $405, 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

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).

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). In support of an IFP application, 28 U.S.C. § 1915 requires that a plaintiff submit an affidavit reflecting his assets. 28 U.S.C. § 1915(a)(1). Here, Plaintiff’s amended IFP application states that Plaintiff’s gross pay or wages are $17.50 per hour and Plaintiff’s take-home pay or wages are $700 per week. (Dkt. No. 5 at ¶ 2.) This equates to $36,400 in take-home pay per year. In addition, Plaintiff’s amended IFP

application states that Plaintiff receives $3,877.22 per month in veteran’s affairs (“VA”) disability. (Id.) As a result, combining Plaintiff’s take-home pay and the VA disability, her yearly income is $82,926.64. The United States Department of Health and Human Services publishes yearly Poverty Guidelines. Those guidelines reflect that, for 2024, the poverty threshold for a household of three2 is $25,820. See United States Dep’t of Health & Human Servs., https://aspe.hhs.gov/poverty-guidelines (last visited July 3, 2024).3 In addition, Plaintiff’s application states that Plaintiff has $1,000.00 in cash or in a checking or savings account. (Dkt. No. 5 at ¶ 4.) Moreover, “Plaintiff’s application does not

disclose any extraordinary or unusual expenses, debts or financial obligations, other than ordinary cost-of-living expenses, such as property taxes, utilities, insurance, and food.” David v. U.S. Envtl. Prot. Agency, 19-CV-0064, 2019 WL 1004706, at *2 (N.D.N.Y. Jan. 29, 2019) (Peebles, M.J.).

2 The IFP application indicates that Plaintiff’s minor children, G.V., T.A., are 100% dependent on Plaintiff for support. (Dkt. No. 5 at ¶ 7.) Notwithstanding Plaintiff’s delineation that these children are minors, she indicates that her son attends St. John Fisher college. (Id.) 3 The Poverty Guidelines do not specify whether they measure income before or after taxes. This distinction is irrelevant in this case. In this instance, I find that Plaintiff possesses sufficient funds to pay the $405.00 filing fee to commence an action without “foregoing the necessities of life.” Potnick, 701 F.2d at 244 (citing Adkins, 335 U.S. 339). Accordingly, I deny Plaintiff’s amended motion to proceed in this case IFP. If Plaintiff wishes to proceed with this action, Plaintiff must comply with the filing fee requirements within thirty (30) days of the filing date of this Decision and Order. Plaintiff is advised that failure to timely comply with this Decision and Order will result in the issuance of a report and recommendation to the assigned district judge that the action be dismissed. ACCORDINGLY, it is ORDERED that Plaintiff's amended IFP application (Dkt. No. 5) is DENIED; and it is further ORDERED that should Plaintiff wish to proceed with this action, Plaintiff must pay the $405.00 filing fee within thirty (30) days from the date of the filing of this Decision and Order. Failure to comply with this directive will result in the issuance of a report and recommendation to the assigned district judge that the action be dismissed; and it is further ORDERED that the Clerk shall serve this Decision and Order on Plaintiff by mail, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit’s decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Dated: July _8, 2024 Binghamton, New York

U.S. Magistrate Judge

Fa Plaintiff alleges that there is a “probability” that he and his KeyCite Red Flag - Severe Negative Treatment dog, Annie, are being poisoned by the widespread use of Report and Recommendation Adopted in Part, Rejected in Part David v. pestici des, herbicides, and other chemical agents, which have U.S. Environmental Protection Agency, N.D.N.Y., March 1, 2019 . . been, and continue to be, approved for the public's use by 2019 WL 1004706 defendants, the United States EPA; Andrew Wheeler, Acting Only the Westlaw citation is currently available. Administrator of the EPA, Richard Keigwin, Jr., Director of United States District Court, N.D. New York. the EPA's Office of Pesticide Program; and Peter D. Lopez, Regional Administrator of the EPA. See generally id. Plaintiff DAVID f/k/a David J. Forjan, Plaintiff, seeks declaratory and injunctive relief. /d. at 15-16. Vv. The U.S. ENVIRONMENTAL IL DISCUSSION PROTECTION AGENCY, et al., Defendants. A. Plaintiff's IFP Application Civil Action No. 3:19-CV-0064 (DNH/DEP) When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $400, must ordinarily Signed 01/29/2019 2 . . be paid. 28 U.S.C. § 1914(a).~ A court is authorized, Attorneys and Law Firms however, to permit a litigant to proceed IFP if it determines that he or she is unable to pay the required filing fee. 28 U.S.C. FOR PLAINTIFF: DAVID, Pro Se, 2633 State Route 17C, § 1915(a)(1). Barton, NY 13734. “ *The purpose of [section] 1915 is to msure that litigants will not be deprived of access to the judicial system because ORDER, REPORT, AND RECOMMENDATION of their financial circumstances.’ ” Naik v. Modern Mktg. Concepts, Inc., No. 3:17-CV-0613, 2017 WL 9509955, at *1 DAVID PEEBLES, CHIEF U.S. MAGISTRATE JUDGE —_—(N_D.N.Y. Sept. 19, 2017) (Peebles, M.J.) (quoting Monti □□ McK 600 F. Supp. 112, 114 (D. Conn. 1984) ); □ *1 Pro se plaintiff David f/k/a David J. Forjan brings upp. 112, 114 (D. Conn. 1984) ); see also this citi it inst the United States Envi tal Harlem River Consumers Coop, Inc. v. Associated Grocers of CRIZED SUN agaist be mnibes prates: Savironme®" Harlem, Inc.,71 F.R.D. 93, 96 (S.D.N.Y. 1976). “The decision Protection Agency (“EPA”) and three high ranking officials □□□ . of whether to grant an application to proceed IFP rests within employed by that agency, alleging violations of, inter alia, the the discretion of the court. Naik. 2017 WL 9509955. at *1 Toxic Substances Control Act, see 15 U.S.C. § 2601, et seg. : □ ° ° ° citing Monti, 600 F. Supp. at 113). the Clean Water Act, see 33 U.S.C. § 1251, er seq.,the Clean “ting Monti mPP ) Air Act see 42 US § 7401, er seq., and the Food Quality *2 Section 1915(a)(1) does not set financial guideposts for Protection Act,” see Pub. L. No. 104-170, 110 Stat. 1489. determining IFP eligibility, but provides that IFP status may Accompanying plaintiff's complaint is a motion requesting be granted when the court is satisfied “that the person is permission to proceed in the action in forma pauperis (“IFP”). unable to pay such fees or give security therefor.” 28 U.S.C. For the reasons set forth below, plaintiff's IFP application is § 1915(a)(1); see also Adkins v. EI. DuPont de Nemours & denied, and I recommend that his complaint be dismissed, Co., 335 U.S. 331, 339 (1948) (“We think an [IFP application] with leave to replead. is sufficient which states that one cannot because of his poverty pay or give security for the costs and still be able L BACKGROUND to provide himself and dependents with the necessities of . . life.” (quotation marks and alteration omitted) ). A plaintiff Plaintiff commenced this action on January 17, 2019. Dkt. . . . . . _. does not need to demonstrate abject poverty to qualify for No. 1. Although plaintiff denominated his action as arising under 42 U.S.C. § 1983, it is clear from his lengthy—and at IFP status. Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d times nonsensical com laint that he is attempting to brin Cir. 1983) (citing Adkins, 33 U.S. at 339); accord Lee ¥. pam pune & McDonald's Corp.,231 F.3d 456, 458 (8th Cir. 2000). Indeed, a citizen suit to enforce various environmental laws and “no party must be made to choose between abandoning a regulations. See generally Dkt. No. 1. Party

life.” Potnick, 701 F.2d at 244 (citing Adkins, 335 U.S. at 339). application for IFP. Because, however, as is discussed more completely below, I find that plaintiff's complaint fails to state In this instance, plaintiff's IFP application sets forth a a claim upon which relief may be granted, 28 U.S.C. § 1915 somewhat murky financial picture. Plaintiff indicates that requires that the court dismiss the action “[n]otwithstanding he is self-employed from his New York residence, but does any filing fee, or any portion thereof, that may have been not disclose that he receives any income from that self- paid[.]” 28 U.S.C. § 1915(e). employment. Dkt. No. 2 at 1. After failing to complete several questions regarding his sources of income over the *3 Section 1915(e) directs that, when a plaintiff seeks to past twelve months, plaintiff indicates that he receives $1,868 proceed IFP, “the court shall dismiss the case at any time if per month in disability and workers' compensation benefits, the court determines that ... the action ... (i) is frivolous or which is nearly double the amount of the current poverty malicious; (ii) fails to state a claim on which relief may be income threshold level as reflected in the guidelines published granted; or (iii) seeks monetary relief against a defendant who by the U.S. Department of Health and Human Services.3 Id. is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). In deciding whether a complaint states a colorable claim, a court Plaintiff's application does not disclose any extraordinary must extend a certain measure of deference in favor of pro se or unusual expenses, debts, or financial obligations, other litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per than ordinary cost-of-living expenses, such as property taxes, curiam), and extreme caution should be exercised in ordering utilities, insurance, and food. Dkt. No. 2 at 2. Although sua sponte dismissal of a pro se complaint before the adverse plaintiff's regular monthly expenses exceed his monthly party has been served and the parties have had an opportunity income, in part due to a moderate amount of credit card to address the sufficiency of plaintiff's allegations, Anderson debt and a small loan, in his application, he discloses that v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). he possesses $27,000 in savings and $65,000 in other assets, including a home in New Mexico. Id. at 2. Plaintiff, who in The court, however, also has an overarching obligation his complaint alleges that he resides in New York, does not to determine that a claim is not legally frivolous before indicate in the IFP application whether his New York home is permitting a pro se plaintiff's complaint to proceed. See, e.g., among his assets or whether he has any expenses associated Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d with that residence. See generally id. 362, 363 (2d Cir. 2000) (holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding In this instance, despite some unanswered questions regarding the fact that the plaintiff paid the statutory filing fee). plaintiff's finances, I find that he possesses sufficient funds to “Legal frivolity ... occurs where ‘the claim is based on an pay the $400.00 filing fee to commence this action without indisputably meritless legal theory [such as] when either the “foregoing the necessities of life.” Potnick, 701 F.2d at 244 claim lacks an arguable basis in law, or a dispositive defense (citing Adkins, 335 U.S. at 339). Accordingly, I will deny clearly exists on the face of the complaint.’ ” Aguilar v. plaintiff's motion to proceed in the case IFP. To the extent United States, Nos. 99-MC-0304, 99-MC-0408, 1999 WL plaintiff may wish to renew his request to proceed IFP, and 1067841, at *2 (D. Conn. Nov. 8, 1999) (quoting Livingston given the court's unanswered questions about his financial v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) situation, any request to proceed without prepayment of fees ); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) must include a fully completed long form in forma pauperis (“[D]ismissal is proper only if the legal theory ... or factual application (AO 239). contentions lack an arguable basis.”); Pino v. Ryan, 49 F.3d. 51, 53 (2d Cir. 1995) (“[T]he decision that a complaint is based on an indisputably meritless legal theory, for purposes B. Plaintiff's Complaint of dismissal under section 1915(d), may be based upon a defense that appears on the face of the complaint.”). 1. Standard of Review When reviewing a complaint under section 1915(e), the court Ordinarily, my denial of plaintiff's IFP application would end is guided by applicable requirements of the Federal Rules of the court's discussion, and plaintiff, in light of his pro se status, Civil Procedure. Specifically, Rule 8 of the Federal Rules of would likely be afforded an opportunity to either prepay the Civil Procedure provides that a pleading must contain “a short entitled to relief.” Fed. R. Civ. P. 8(a)(2). The purpose of Rule the requisite specificity with respect to how each defendant 8 “is to give fair notice of the claim being asserted so as to violated the law or caused damage to plaintiff, the court permit the adverse party the opportunity to file a responsive recommends that the complaint be dismissed against those answer, prepare an adequate defense and determine whether defendants. the doctrine of res judicata is applicable.” Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy, J.) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 3. Analysis of Claims Against the EPA 1977) ) (quotation marks and emphasis omitted). Plaintiff's complaint is comprised of forty-four pages and 228 A court should not dismiss a complaint if the plaintiff paragraphs of incoherent prose and data culled from news has stated “enough facts to state a claim to relief that is articles regarding the use of pesticides and other chemical plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. agents. By way of one example, in the “[i]ntroduction” 544, 570 (2007). “A claim has facial plausibility when the section of the complaint, plaintiff alleges as follows: plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the [¶ 4] Father says, be still and know that I am God, misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 Father says, be still and be filled with my peace, (2009) (citing Twombly, 550 U.S. at 556). Although the court should construe the factual allegations of a complaint in a Father says, be still and know that I am the Lord, light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a Father says, and remain hereafter within me. complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause Father says, I created everything. of action, supported by mere conclusory statements, do not Father says, like Insects and Birds and Frogs and Rabbits suffice.” Id. (citing Twombly, 550 U.S. at 555). Thus, “where and Possums and Owls and Hawks and Eagles and pets the well-pleaded facts do not permit the court to infer more and human Children. than the mere possibility of misconduct, the complaint has alleged–but it has not ‘show[n]’–‘that the pleader is entitled Father says, l created everything. to relief.’ ” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2) ). Father says, they are all my children. [¶ 5] Father says, Defendants are endangering and killing 2. Analysis of Claims Against them all. Father says, with pesticides. Father says, your Defendants Wheeler, Keigwin, and Lopez Honor, we must stop allowing the use of pesticides. Father says, your Honor, pesticides are poisons. *4 As was noted above, a pleading must contain, inter alia, “a short and plain statement of the claim showing that the [¶ 6] Father says, your Honor, Birds and Frogs eat the pleader is entitled to relief” Fed. R. Civ. P. 8(a)(2). As a poisoned Insects, and the more they eat, the more result, when a complaint names a defendant in the caption, the poisons accumulate in them, and the poisons kills “but contains no allegations indicating how the defendant them too. Father says, your Honor, bigger Birds and violated the law or injured the plaintiff,” any claims against Mammals, including some pets, sometimes eat poisoned that defendant are subject to dismissal. Dove v. Fordham Birds and Frogs, and Rabbits eat poisoned grasses and Univ., 56 F. Supp. 2d 330, 335 (S.D.N.Y. 1999) (quoting plants, and that poison accumulates in them, or your Morabito v. Blum, 528 F. Supp. 252, 262 (S.D.N.Y. 1981) ); pets, and will harm and kill them. Father says, your Gilfus v. Adessa, No. 04-CV-1368, 2006 WL 2827132, at *4 Honor, like the Raptors and Earth-bound Mammals that (Sept. 30, 2006) (Munson, J.). eat poisoned Frogs and Birds, that poison kills them too. Here, beyond naming defendants Wheeler, Keigwin, and Dkt. No. 1 at 2 (errors in original). Thereafter, in a 130- Lopez in the caption and first paragraph of his complaint, paragraph factual “addendum” to the complaint, see Dkt. No. see Dkt. No. 1 at 1-2, plaintiff has failed to set forth any 1 at 17-44, plaintiff alleges: [¶ 1] It is startling to see how heavily strawberries are with the requirements of Rule 8 of the Federal Rules of contaminated with residues of hazardous pesticides, but Civil Procedure] ... is usually reserved for those cases in even more shocking is that these residues don't violate which the complaint is so confused, ambiguous, vague, or the weak U.S. laws and regulations on pesticides in food, otherwise unintelligible that its true substance, if any, is well said Sonya Lunder, EWG Senior Analyst. The EPA's disguised.”). levels of residues allowed on produce are too lax to protect Americans' health. They should be updated to reflect new research that shows even very small doses of C. Whether to Permit Amendment toxic chemicals can be harmful, particularly for young Ordinarily, a court should not dismiss a complaint filed by a children. pro se litigant without granting leave to amend at least once “when a liberal reading of the complaint gives any indication [¶ 2] This study is one of many that shows we know that a valid claim might be stated.” Branum v. Clark, 927 very little about the repercussive effects of pesticides F.2d 698, 704-05 (2d Cir. 1991); see also Fed. R. Civ. P. once released into the environment, said Ruth Kerzee, 15(a) (“The court should freely give leave when justice so executive director of the Midwest Pesticide Action requires.”); see also Mathon v. Marine Midland Bank, N.A., Center, who was not involved in the study, We are told 875 F. Supp. 986, 1003 (E.D.N.Y. 1995) (permitting leave to these compounds break down rapidly when exposed to replead where court could “not determine that the plaintiffs sunlight and, yet, this study shows persistence in the would not, under any circumstances, be able to allege a civil environment long after applications. RICO conspiracy”). An opportunity to amend is not required, however, where “the problem with [the plaintiff's] causes of *5 [¶ 3] Sidelined (U.S. EPA) children's health official action is substantive” such that “better pleading will not cure Dr. Ruth Etzel says EPA under Trump believes kids are it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see disposable, they don't matter - CBS News[.] also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 Dkt. No. 1 at 17 (internal quotation marks omitted). (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should Although certain citizen enforcement suits are permissible be dismissed with prejudice.”). Stated differently, “[w]here against the EPA, as the complaint is currently drafted, the it appears that granting leave to amend is unlikely to be court is unable to meaningfully analyze, in accordance with productive, ... it is not an abuse of discretion to deny leave to 28 U.S.C. § 1915(e), whether and to what extent plaintiff has amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d pleaded a colorable claim against the EPA.4 See generally Cir. 1993); accord, Brown v. Peters, No. 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.). Dkt. No. 1. Plaintiff's prolix pleading places an unjustified burden on the court “ ‘to select the relevant material from a *6 In this case, it is not clear whether better pleading would mass of verbiage.’ ” Salahuddin v. Cuomo, 861 F.2d 40, 41-42 permit plaintiff to assert a cognizable cause of action against (2d Cir. 1988) (quoting 5 C. Wright & A. Miller, Federal the EPA. Out of deference to his pro se status, however, Practice and Procedure § 1281, at 365 (1969) ). I recommend that plaintiff be granted leave to amend his complaint. Accordingly, I recommend the complaint be dismissed as frivolous. See, e.g., Gillich v. Shields, No. 18-CV-0486, If plaintiff chooses to avail himself of an opportunity to 2018 WL 2926299 (N.D.N.Y. Apr. 30, 2018) (Peebles, amend, such amended pleading must set forth a short and M.J.), report and recommendation adopted by 2018 WL plain statement of the facts on which he relies to support 2926302, at *3 (N.D.N.Y. Jun. 8, 2018) (D'Agostino, J.); any legal claims asserted. Fed. R. Civ. P. 8(a). In addition, Canning v. Hofmann, No. 15-CV-0493, 2015 WL 6690170, the amended complaint must include allegations reflecting at *5 (N.D.N.Y. Nov. 2, 2015) (Hurd, J.) (“Under these how the individuals named as defendants are involved in circumstances, having found that none of the allegations in the allegedly unlawful activity. Finally, plaintiff is informed Plaintiff's meandering and indecipherable Complaint raise that any such amended complaint will replace the existing a cognizable cause of action, the Court concludes that complaint, and must be a wholly integrated and complete the Complaint fails to state a claim upon which relief pleading that does not rely upon or incorporate by reference may be granted and is subject to dismissal.”); see also Cir. 1994) (“It is well established that an amended complaint RECOMMENDED that plaintiff's complaint (Dkt. No. 1) be DISMISSED, with leave to replead. ordinarily supersedes the original, and renders it of no legal effect.” (internal quotation marks omitted) ). NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such III. SUMMARY, ORDER, AND RECOMMENDATION objections must be filed with the clerk of the court within For the reasons set forth above, it is hereby FOURTEEN days of service of this report.5 FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE ORDERED that plaintiff's in forma pauperis application APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. (Dkt. No. 2) is DENIED without prejudice. In the event this P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993). report is adopted and plaintiff is granted leave to amend his complaint, any amended complaint must be accompanied by either (1) the full filing fee or (2) a new request to proceed in All Citations this action without prepayment of the filing fees in the form Not Reported in Fed. Supp., 2019 WL 1004706 of a completed AO 239; and it is further respectfully Footnotes 1 The Food Quality Protection Act amended both the Federal Food, Drug, and Cosmetic Act, see 21 U.S.C. § 301, et seq., and the Federal Insecticide, Fungicide and Rodenticide Act, see 7 U.S.C. § 136, et seq. 2 The language of that section is ambiguous, in that 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”). 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). 3 Those guidelines reflect that effective January 11, 2019, for an individual residing within the forty-eight contiguous states and the District of Columbia, the threshold is $12,490. U.S. Dep't of Health & Human Servs., Poverty Guidelines, https://aspe.hhs.gov/poverty-guidelines (last visited Jan. 24, 2019). 4 For example, the citizen suit provision of the Clean Water Act enables citizens to bring suit to force the Administrator of the EPA to perform non-discretionary duties. 33 U.S.C. § 1365(a)(2); see generally Dep't of Energy v. Ohio, 503 U.S. 607, 615 (1992). Here, plaintiff simply alleges that the EPA has violated the spirit of the Clean Water Act because there is a probability that he and his dog are being poisoned by the widespread chemical agents. As a result, it is not clear from plaintiff's complaint what mandatory duty he alleges that the EPA has allegedly failed to perform pursuant to the Clean Water Act. As a separate issue that is beyond the scope of this order, report, and recommendation, I note that citizen enforcement suits under the Toxic Substances Control Act, the Clean Water Act, and the Clean Air Act are each subject to certain pre-suit notice requirements. 15 U.S.C. § 2619(b)(2) (Toxic Substances Control Act); 33 U.S.C. § 1365(b)(2) (Clean Water Act); 42 U.S.C. § 7604(b)(2) (Clean Air Act). There is no indication in plaintiff's complaint that he has met those requirements. 5 If you are proceeding pro se and are served with this report and recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the 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). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.