Opinion

Lopez v. 1st Def NYS Superintendent

Court
District Court, E.D. New York
Filed
Feb 21, 2020
Cited by
0 cases
Authority
More cited than 26.5%

The opinion

FILED

UNITED STATES DISTRICT COURT US. DISTRICT COURT □□□□□

EASTERN DISTRICT OF NEW YORK

□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ *& FEB 2120200 □

LIGIO LOPEZ,

LONG ISLAND OFFICE

Plaintiff,

. ORDER

-against- 19-CV-6806 (GRB)(SIL)

NYS SUPERINTENDENT, NEW YORK STATE,

Defendants.

necwnnnnennnen en enen meen ce □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ X

GARY R. BROWN, United States District Judge:

On November 26, 2019, incarcerated pro se plaintiff Ligio Lopez (“plaintiff”) filed

another complaint in this Court together with an in forma pauperis application and a Prisoner

Litigation Authorization (“PLRA”) for the Southern District of New York. (See Docket Entry

Nos. 1-3.) By Notice of Deficiency dated February 6, 2020, plaintiff was instructed to complete

and return the enclosed PLRA for the Eastern District of New York within fourteen days. (See

Docket No. 12.) On February 14, 2020, plaintiff timely filed the PLRA for this District. (See

Docket No. 14.) For the reasons that follow, plaintiff's application to proceed in forma

pauperis is denied without prejudice and with leave to renew upon filing the enclosed

“Application to Proceed in District Court without Prepaying Fees or Costs (Long Form)” (AO

239). Alternatively, plaintiff may pay the $400.00 filing fee.

To qualify for in forma pauperis status, the Supreme Court has long held that “an

affidavit is sufficient which states that one cannot because of his poverty pay or give security for

the costs [inherent in litigation] and still be able to provide himself and dependents with the

necessities of life.” Adkins v. Du Pont De Nemours & Co., 335 U.S. 331, 339, 69 S. Ct. 85,

93 L. Ed. 43 (1948) (internal quotation marks omitted). Plaintiffs application does not include

sufficient information for the Court to make such finding.

Plaintiff indicates that he is presently incarcerated and earns approximately $3.50 in

weekly “prison wages.” (See Docket Entry 2 at 3.) Plaintiff indicates that he has no housing

expenses and that he does not provide financial support to any other individuals. (Jd. 6-7.)

Plaintiff avers that he has $740 in his prison account and has attached a copy of his Inmate

Account Statement for the period 8/31/19 through 9/30/19 that reflects a balance of $741.52.

(See Docket Entry 2 □□ and at 3.) Thus, plaintiff's application does not demonstrate that he is

unable to pay the filing fee and still provide himself “with the necessities of life.” Adkins,335 —

U.S. at 339. The Court finds that plaintiff can best set forth his current financial position on the

Application to Proceed in District Court without Prepaying Fees or Costs (Long Form)” (AO

239). Accordingly, plaintiff's application to proceed in forma pauperis is denied without

prejudice and with leave to renew upon filing the enclosed “Application to Proceed in District

Court without Prepaying Fees or Costs (Long Form)” (AO 239), Alternatively, plaintiff may

pay the $400.00 filing fee.'! Plaintiff shall either file the Long Form or remit the filing fee

within two (2) weeks of the date of this Order or this action will be dismissed without prejudice.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order

would not be taken in good faith and therefore in forma pauperis status is denied for the purpose

of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d

21 (1962). The Clerk of the Court is directed to mail a copy of this Order to the pro se plaintiff.

SO ORDERED.

/s Gary R. Brown

Gary R. Brown

United States District Judge

Dated: February 21, 2020

Central Islip, New York

' Plaintiff is cautioned that, once paid, there are no refunds of the filing fee regardless of the

outcome of plaintiff's claims. The Court suggests that plaintiff consider the pleading

requirements of Federal Rules of Civil Procedure 8 as well as whether the present complaint is

yet another attempt to seek habeas relief and, as a successive petition, would be barred in this

Court.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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