Hill v. NY State Fund Ins.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

BONITA HILL,

Plaintiff,

v. 5:21-CV-1068

(DNH/ML)

N.Y. STATE FUND INS.,

Defendant.

_____________________________________________

APPEARANCES: OF COUNSEL:

BONITA HILL

Plaintiff, Pro Se

203 King Avenue

Syracuse, New York 13209

MIROSLAV LOVRIC, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

The Clerk has sent this pro se complaint together with an application to proceed in forma

pauperis and motion for appointment of counsel filed by Bonita Hill (“Plaintiff”) to the Court for

review. (Dkt. Nos. 1, 2, 3.) For the reasons discussed below, I deny Plaintiff’s in forma

pauperis application (Dkt. No. 2), deny Plaintiff’s motion for appointment of counsel (Dkt. No.

3), and recommend that Plaintiff’s Complaint (Dkt. No. 1) be dismissed without leave to amend.

I. BACKGROUND

Construed as liberally1 as possible, Plaintiff’s Complaint alleges that she was wronged by

N.Y. State Fund Ins. (“Defendant”). (See generally Dkt. No. 1.) Plaintiff’s Complaint appears

to include portions of the form complaints for (1) employment discrimination based on age, and

(2) actions pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

403 U.S. 388 (1971). (Id.) However, Plaintiff does not appear to allege any facts plausibly

suggesting causes of action relevant to those forms. (Id.) Instead, Plaintiff appears to allege that

she filed for workers’ compensation based on an injury that occurred on July 23, 2012, but that

her application was improperly dismissed by Judge Borden because he did not see her C-3 form.

(Id.) Plaintiff alleges that Judge Borden then apologized for “ruining” her case but Plaintiff was

not given a new case number. (Id.) Plaintiff alleges that she appealed to a higher court and her

appeal was improperly dismissed because she did not have the correct date of her injury. (Id.)

Plaintiff also filed an application for leave to proceed in forma pauperis. (Dkt. No. 2.)

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 $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).2 Pursuant to 28 U.S.C. § 1915, where a plaintiff seeks leave to proceed

1 The court must interpret pro se complaints to raise the strongest arguments they suggest.

Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790

(2d Cir. 1994)).

2 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

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).

In support of an IFP application, 28 U.S.C. § 1915 requires that a plaintiff submit an

affidavit reflecting her assets. 28 U.S.C. § 1915(a)(1).

Here, Plaintiff’s IFP application is incomplete. (Dkt. No. 2.) Plaintiff does not answer

question 2, which asks the name and address of her employer and her wages. (Id. at ¶ 2.)

Plaintiff fails to answer most of the subparagraphs in question 3, which relate to sources of other

income that Plaintiff may have received in the past 12 months. (Id. at ¶ 3.) Plaintiff states that

she receives income from “Disability, or worker’s compensation payments” but fails to describe

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).

the source and amount that she has received and what she expects to receive in the future. (Id. at

¶ 3.) Plaintiff indicates that rent is her only regular monthly expense but fails to indicate the

amount of that monthly expense. (Id. at ¶ 6.) In addition, Plaintiff fails to answer questions 7

and 8. (Id. at ¶¶ 7-8.)

Accordingly, I deny Plaintiff’s motion to proceed in this case IFP. To the extent that

Plaintiff may wish to renew her request to proceed IFP, and given the Court’s unanswered

questions about her financial situation, any request to proceed without the prepayment of fees

must include a fully completed long form in forma pauperis application (AO 239).

III. LEGAL STANDARD GOVERNING INITIAL REVIEW OF A COMPLAINT

Ordinarily, the finding that Plaintiff does not qualify for IFP status would end the Court’s

discussion, and Plaintiff, in light of her pro se status, would likely be afforded an opportunity to

either prepay the full filing fee, or submit a new, completed, and certified application for IFP.

Because, however, as is discussed more completely below, I find that Plaintiff’s Complaint fails

to state a claim upon which relief may be granted, 28 U.S.C. § 1915 requires that the court

dismiss the action “[n]otwithstanding any filing fee, or any portion thereof, that may have been

paid[.]” 28 U.S.C. § 1915(e).

Section 1915(e) directs that, when a plaintiff seeks to proceed IFP, “the court shall

dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or

malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief

against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). In deciding

whether a complaint states a colorable claim, a court must extend a certain measure of deference

in favor of pro se litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and

extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint

before the adverse party has been served and the parties had an opportunity to address the

sufficiency of plaintiff’s allegations, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).

The Court, however, also has an overarching obligation to determine that a claim is not

legally frivolous before permitting a pro se plaintiff’s complaint to proceed. See, e.g., Fitzgerald

v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district

court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff

paid the statutory filing fee). “Legal frivolity . . . occurs where ‘the claim is based on an

indisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law,

or a dispositive defense clearly exists on the face of the complaint.” Aguilar v. United States, 99-

MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) (quoting Livingston

v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams,

490 U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal theory . . . or factual

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 of

dismissal under section 1915(d), may be based upon a defense that appears on the face of the

complaint.”).

When reviewing a complaint under section 1915(e), the court is guided by applicable

requirements of the Federal Rules of Civil Procedure. More specifically, Rule 8 of the Federal

Rules of Civil Procedure provides that a pleading must contain, inter alia, “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The

requirement that a plaintiff “show” that he or she is entitled to relief means that a complaint

“must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 [2007]). “Determining whether a complaint states

a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and

common sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged–but it has not shown–that the pleader

is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).

“In reviewing a complaint . . . the court must accept the material facts alleged in the

complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v.

Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court

must accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

IV. ANALYSIS

In addressing the sufficiency of a plaintiff’s complaint, the court must construe her

pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).

Having reviewed Plaintiff’s Complaint with this principle in mind, I recommend that her claims

be dismissed.

To the extent that Plaintiff requests that this Court review her workers’ compensation

claim, I recommend that those claims be dismissed as barred. Under New York law, “once a

claim is brought to a final conclusion, all other claims arising out of the same transaction or

series of transactions are barred, even if based upon different theories or if seeking a different

remedy.” Simmons v. Trans Express Inc., 37 N.Y.3d 107, 111 (N.Y. 2021) (emphasis omitted).

The facts underlying Plaintiff’s claims here are identical to those underlying the benefit claims

presented to the workers’ compensation board (“WCB”). Those claims appear to have been

litigated to finality. As a result, Plaintiff cannot relitigate claims arising from the same facts in

federal court. See Cozzi v. New York State Workers’ Comp. Bd., 21-812-CV, 2021 WL 5105842,

at *2 (2d Cir. Nov. 3, 2021) (affirming the district court’s dismissal of the pro se plaintiff’s

complaint that sought reversal of New York state-court decisions relating to his claims for

workers’ compensation “because claim preclusion barred the District Court from considering

[the plaintiff]’s challenges to the WCB’s decisions.”).3

As a result, I recommend that Plaintiff’s Complaint be dismissed.

V. OPPORTUNITY TO AMEND

Generally, a court should not dismiss claims contained in a complaint filed by a pro se

litigant without granting leave to amend at least once “when a liberal reading of the complaint

gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05

(2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when

justice so requires.”). An opportunity to amend is not required, however, where “the problem

with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.”

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding

L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact

sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated

differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is

not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d

3 To the extent that Plaintiff also attempts to assert claims pursuant to 42 U.S.C. § 1983, I

recommend dismissal of those claims because Defendant “is a New York State (‘State’) agency

entitled, under the Eleventh Amendment to the Constitution, to immunity from suit in federal

court.” Lipofsky v. Steingut, 86 F.3d 15, 16 (2d Cir. 1996) (affirming the district court’s

dismissal of the pro se plaintiff’s complaint “brought under, inter alia, 42 U.S.C. § 1983 . . .

[seeking] damages from defendant The State Insurance Fund (‘SIF’) for nonpayment of a . . .

workers’ compensation award.”).

129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1

(N.D.N.Y. Sept. 22, 1997) (Pooler, J.).4

Here, the issues with Plaintiff’s Complaint are substantive, such that a better pleading

will not cure it. As a result, I recommend that she not be granted leave to amend.

VI. PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL

Plaintiff has also submitted a request for appointment of counsel. (Dkt. No. 3.) The

application indicates that Plaintiff has been unsuccessful in her efforts to obtain counsel on her

own from the private sector. (Id.)

As an initial matter, “[a] party has no constitutionally guaranteed right to the assistance of

counsel in a civil case.” Leftridge v. Connecticut State Trooper Officer No. 1283, 640 F.3d 62,

68 (2d Cir. 2011) (citations omitted). Courts cannot utilize a bright-line test in determining

whether counsel should be appointed on behalf of an indigent party. Hendricks v. Coughlin, 114

F.3d 390, 392-93 (2d Cir. 1997). Instead, a number of factors must be carefully considered by

the court in ruling upon such a motion. As a threshold matter, the court should ascertain whether

the indigent’s claims seem likely to be of substance. A motion for appointment of counsel may

be properly denied if the court concludes that the plaintiff’s “chances of success are highly

dubious.” Leftridge, 640 F.3d at 69. If the court finds that the claims have substance, the court

should then consider:

[T]he indigent’s ability to investigate the crucial facts, whether conflicting

evidence implicating the need for cross-examination will be the major

proof presented to the fact finder, the indigent’s ability to present the case,

4 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015)

(Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171

F.3d 794, 796 (2d Cir. 1999)—that the Court should grant leave to amend “unless the court can

rule out any possibility, however unlikely it might be, that an amended complaint would be

successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell

Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev’d on other grounds, 682 F. App’x 30.

the complexity of the legal issues and any special reason in th[e] case why

appointment of counsel would be more likely to lead to a just

determination.

Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994) (quoting Hodge v.

Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986)). This is not to say that all, or indeed any, of

these factors are controlling in a particular case. Rather, each case must be decided on its own

facts. Velasquez v. O’Keefe, 899 F. Supp. 972, 974 (N.D.N.Y. 1995) (McAvoy, C.J.) (citing

Hodge, 802 F.2d at 61).

In the present matter, the Court has recommended dismissal of the action. As such, the

Court cannot find that Plaintiff’s claims are likely to be of substance. Plaintiff’s motion (Dkt.

No. 3) is therefore denied.

ACCORDINGLY, it is

ORDERED that the application to proceed in forma pauperis (Dkt. No. 2) is DENIED

without prejudice and with leave to renew; and it is further

ORDERED that Plaintiff’s motion for appointment of counsel (Dkt. No. 3) is DENIED;

and it is further respectfully

RECOMMENDED that the Court DISMISS WITHOUT LEAVE TO REPLEAD

Plaintiff’s claims, for failure to state a claim upon which relief may be granted pursuant to 28

U.S.C. 1915(e)(2)(B(ii); and it is further

ORDERED that the Clerk of the Court shall file a copy of this order, report, and

recommendation on the docket of this case and serve a copy upon the parties in accordance with

the local rules.5

5 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein

in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

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: November 15 , 2021

Binghamton, New York

Miroslav Lovric

U.S. Magistrate Judge

6 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).

10