# Lewis v. Redline Hockey, LLC

> District Court, N.D. New York · April 17, 2024

URL: https://www.frixlaw.com/law-library/cases/10316509

## Case

- **Court:** District Court, N.D. New York
- **Decided:** April 17, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10316509

## How later opinions describe it (automated extraction)

- explaining that whether a plaintiff is regarded as disabled “turns on the employer's perception of the employee and is therefore a question of intent, not whether the employee has a disability” (citation omitted)
- explaining that with regards to a complaint, the “[f]actual allegations must be enough to raise a right to relief above the speculative level” (citation omitted)

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

SCOTT PHILLIP LEWIS,

Plaintiff, 8:24-cv-68 (BKS/DJS)

v.

REDLINE HOCKEY, LLC d/b/a USA Hockey Store and
USA Spirit Shop, USA
HOCKEY INC., MATTHEW NYMAN
and MICHAEL NYMAN,

Defendants.

Appearances:
Plaintiff pro se:
Scott Phillip Lewis
Lake Placid, NY 12946
Hon. Brenda K. Sannes, Chief United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Scott Phillip Lewis commenced this proceeding on January 15, 2024, alleging
violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., Section
50 of the New York Civil Rights Law, and for defamation. (Dkt. No. 1). Plaintiff also sought
leave to proceed in forma pauperis (“IFP”). (Dkt. No. 2). This matter was referred to United
States Magistrate Judge Daniel J. Stewart. (Id.). On January 23, Plaintiff filed a request that
proposed summonses be issued, which was subsequently denied. (Dkt. Nos. 5–6). Following the
denial, Plaintiff filed a motion for reconsideration and a supporting memorandum of law. (Dkt.
Nos. 7–8). On February 20, 2024, Magistrate Judge Stewart granted Plaintiff’s application to
proceed IFP, denied Plaintiff’s motion for reconsideration, and issued a Report-
Recommendation, recommending that Plaintiff’s complaint be dismissed with leave to amend.
(Dkt. Nos. 9–11). Plaintiff filed a motion on February 28 to waive PACER fees which Magistrate
Judge Stewart denied. (Dkt. Nos. 12–13). Plaintiff has timely filed his objections to the Report-
Recommendation and has appealed the orders denying his request for the issuance of the

summonses and denying his motion to waive PACER fees. (Dkt. Nos. 14–16). For the reasons
set forth below, the Report-Recommendation is adopted and Plaintiff’s appeals are denied.
II. STANDARD OF REVIEW
This court reviews de novo those portions of the Magistrate Judge’s findings and
recommendations that have been properly preserved with a specific objection. Petersen v.
Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). “A proper
objection is one that identifies the specific portions of the [report-recommendation] that the
objector asserts are erroneous and provides a basis for this assertion.” Kruger v. Virgin Atl.
Airways, Ltd., 976 F. Supp. 2d 290, 296 (E.D.N.Y. 2013) (citation omitted). Properly raised
objections “must be specific and clearly aimed at particular findings” in the report. Molefe v.
KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009) (citation omitted).

“[E]ven a pro se party’s objections to a Report and Recommendation must be specific and
clearly aimed at particular findings in the magistrate’s proposal.” Machicote v. Ercole, No. 06-
cv-13320, 2011 WL 3809920 at *2, 2011 U.S. Dist. LEXIS 95351, at *4 (S.D.N.Y. Aug. 25,
2011) (citation omitted). Findings and recommendations as to which there was no properly
preserved objection are reviewed for clear error. Kruger, 976 F. Supp. 2d at 296 (citation
omitted).
A magistrate judge may issue orders regarding nondispositive pretrial matters, and the
district court reviews such orders under the “clearly erroneous or contrary to law” standard. 28
U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). “An order is clearly erroneous when the reviewing
court is left with the definite and firm conviction that a mistake has been committed. An order is
contrary to law when it fails to apply or misapplies relevant statutes, case law or rules of
procedure.” Tompkins v. R.J. Reynolds Tobacco Co., 92 F. Supp. 2d 70, 74 (N.D.N.Y. 2000)
(citations and internal quotation marks omitted). “Under this highly deferential standard,

magistrate judges are afforded broad discretion in resolving nondispositive disputes and reversal
is appropriate only if their discretion is abused.” Williams v. Rosenblatt Sec., Inc., 236 F. Supp.
3d 802, 803 (S.D.N.Y. 2017) (quoting Thai Lao Lignite (Thailand) Co., Ltd. v. Gov’t of Lao
People’s Democratic Republic, 924 F. Supp. 2d 508, 511 (S.D.N.Y. 2013)).
III. DISCUSSION
A. Objections to the Report-Recommendation
Plaintiff has not raised any objections to the facts or the legal framework set forth in the
Report-Recommendation. (See Dkt. No. 15). The Court therefore adopts Magistrate Judge
Stewart’s summary of the factual background and applicable law and presumes familiarity with
those matters for the purposes of this decision.
1. ADA
Plaintiff alleges that Defendants violated his rights under the ADA by discriminating

against him because he is disabled. (Dkt. No. 1, at 4–5). Magistrate Judge Stewart recommended
Plaintiff’s ADA claim be dismissed with leave to amend because “[t]he Complaint does not
allege that Plaintiff filed a discrimination complaint with the EEOC and does not provide a copy
of a right to sue letter.” (Dkt. No. 11, at 4). Plaintiff has objected to the dismissal on the basis
that “[t]he Seventh Amendment extends the right to a jury trial in Federal civil cases.” (Dkt. No.
15, at 3).
As an initial matter, the right to a jury trial as guaranteed by the Seventh Amendment is
not violated by requiring a plaintiff to administratively exhaust his claims before bringing them
to federal court. See Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011) (“[T]he Seventh
Amendment's guarantee of the right to the ultimate determination of issues of fact by the jury
does not extend to the threshold issue[s],” like administrative exhaustion, “that courts must
address to determine whether litigation is being conducted in the right forum at the right time.”

(citations and internal quotation marks omitted)). While Plaintiff’s objection is meritless, having
reviewed the issue regarding exhaustion of administrative remedies de novo, the Court concludes
that it would be error to dismiss Plaintiff’s ADA claim for failure to plead exhaustion of
administrative remedies or receipt of a right to sue letter. “Administrative exhaustion in the . . .
ADA context ‘is not a jurisdictional [prerequisite], but only a precondition to bringing [suit] . . .
that can be waived by the parties or the court.’” Anderson v. City of New York, No. 22-cv-3990, -
--F. Supp. 3d ----, 2024 WL 183103, at *6 n.6, 2024 U.S. Dist. LEXIS 8834, at *13 n.6
(S.D.N.Y. Jan. 17, 2024) (quoting Gomez v. N.Y.C. Police Dep’t, 191 F. Supp. 3d 293, 299
(S.D.N.Y. 2016)); see also Hardaway v. Hartford Pub. Works Dep’t, 879 F.3d 486, 491 (2d Cir.
2018) (concluding the district court’s sua sponte dismissal of the plaintiff’s discrimination claims

“for failure to exhaust, or plead other facts that would relieve him of the obligation to file a
complaint with the EEOC,” was erroneous, explaining that “the burden of pleading and proving
Title VII exhaustion lies with defendants and operates as an affirmative defense.”).
Consequently, a Plaintiff’s failure to allege sufficient facts regarding exhaustion is not
necessarily fatal to Plaintiff’s claim.
However, Plaintiff’s claim remains insufficient in other ways. A prima facie case of
disability discrimination under the ADA requires a plaintiff to show: “(1) the defendant is
covered by the ADA; (2) [the] plaintiff suffers from or is regarded as suffering from a disability
within the meaning of the ADA; (3) [the] plaintiff was qualified to perform the essential
functions of the job, with or without reasonable accommodation; and (4) [the] plaintiff suffered
an adverse employment action because of his disability or perceived disability.” Luka v. Bard
Coll., 263 F. Supp. 3d 478, 486 (S.D.N.Y. 2017) (quoting Capobianco v. City of New York, 422
F.3d 47, 56 (2d Cir. 2005)). While “a plaintiff alleging disability discrimination is not required to

plead a prima facie case” at the pleadings stage, the plaintiff still must “give plausible support to
a minimal inference of discriminatory motivation.” Id. at 487 (internal citation marks omitted)
(quoting Dooley v. JetBlue Airways Corp., 636 F. App’x 16, 21 (2d Cir. 2015) (summary order));
see also Giambattista v. Am. Airlines, Inc., 584 F. App’x 23, 25 (2d Cir. 2014) (summary order)
(“To state a claim for discrimination under the ADA, a plaintiff must allege facts which plausibly
suggest, inter alia, that she “suffered [an] adverse employment action because of [her]
disability.”).
Here, Plaintiff has not sufficiently alleged facts supporting the minimal inference
required. First, Plaintiff has not plausibly alleged he is disabled within the meaning of the ADA.
The ADA defines “disability” as: “(A) a physical or mental impairment that substantially limits

one or more major life activities of such individual; (B) a record of such an impairment; or (C)
being regarded as having such an impairment.” 42 U.S.C. § 12102(1). Plaintiff’s assertions that
he “had been diagnosed with ADHD” and that he “was subsequently diagnosed with PTSD after
employment ended,” (Dkt. No. 1, ¶ 26), without additional factual allegations to show how a
major life activity is or was substantially limited by such conditions is not enough to satisfy his
pleading burden under either prong (A) or prong (B) of the definition. See e.g., Rodriguez v.
Verizon Telecom, No. 13-cv-6969, 2014 WL 6807834, at *3–5, 2014 U.S. Dist. LEXIS 167833,
*9–12 (S.D.N.Y. Dec. 3, 2014) (finding the plaintiff failed to plead his alcohol and drug
addictions constituted a disability or a record of disability under the ADA because he did not
allege any facts pertaining to how these conditions “substantially limit” or “substantially limited
a major life activity”). And Plaintiff has not alleged facts that suggest any Defendant perceived
him as disabled, such that he would meet the definition under prong (C). See Laface v. Eastern
Suffolk Boces, 349 F. Supp. 3d 126, 147 (E.D.N.Y. 2018) (explaining that whether a plaintiff is

regarded as disabled “turns on the employer's perception of the employee and is therefore a
question of intent, not whether the employee has a disability” (citation omitted)).
Second, Plaintiff has not pled that he experienced an adverse employment action. An
adverse employment action is defined “as a ‘materially adverse change’ in the terms and
conditions of employment,” for example, “termination of employment, a demotion evidenced by
a decrease in wage or salary, a less distinguished title, a material loss of benefits, [or]
significantly diminished material responsibilities.” Sanders v. N.Y.C. Human Res. Admin., 361
F.3d 749, 755 (2d Cir. 2004) (citations omitted). Plaintiff alleges that he “encountered hostile
situations in the workplace,” including that Defendant Matthew Nyman “responded
aggressively” to Plaintiff in a conversation regarding how Plaintiff should fill out his tax forms.
(Dkt. No. 1, ¶ 121). Plaintiff states that “[w]hile Plaintiff was seeking partnership opportunities,

he ended up working a minimum wage job for more hours than initially agreed” and that he was
“put in what was perceived to be manufactured situations for entertainment purposes rather than
put in any business setting concurrent to prior experience.” (Id. ¶¶ 27–28). None of these events
constitute adverse employment actions. See Sosa v. N.Y.C. Dep’t of Educ., 368 F. Supp. 3d 489,
495–96 (E.D.N.Y. 2019) (“An employer's behavior does not constitute an adverse employment
action because the employee sustained some generalized harm; the harm must be related to the

1 Plaintiff’s Complaint contains two paragraphs numbered “12.” (See Dkt. No. 1, at 2–3). This citation is to the second
paragraph “12.” (See id. at 3).
employee's terms and conditions of employment.” (citations omitted)). Moreover, Plaintiff does
not provide any facts that would indicate that any of these events occurred because Plaintiff was
disabled within the meaning of the ADA. See, e.g., Salas v. N.Y.C. Dep’t of Investigation, 298 F.
Supp. 3d 676, 687 (S.D.N.Y. 2018) (finding plaintiff had not sufficiently pled claims of religious

and disability discrimination in part due to lack of allegations “that her supervisors or other
management . . . made any statements about her religion or her disability, let alone statements
indicating that those characteristics played a role in” the alleged adverse employment actions).
Plaintiff also cites 42 U.S.C. § 12112(b)(5)(A),2 suggesting he may be claiming he was
not provided a reasonable accommodation in accordance with the ADA. (Dkt. No. 1, ¶ 24; see
also id. ¶ 36 (“Instead of providing accommodations in accordance to [sic] the Americans with
Disabilities Act, Defendant used Plaintiff as a prop for entertainment purposes.”). But Plaintiff
does not allege any facts suggesting he requested an accommodation or was denied one.
Accordingly, the Court agrees with the Report-Recommendation that Plaintiff’s ADA
claim should be dismissed with leave to amend.

2. Right to Privacy
Plaintiff alleges that Defendants violated Section 50 of the New York Civil Rights Law
by recording him without consent “for entertainment purposes.” (Id. ¶¶ 34–36). The Magistrate
Judge recommended dismissing this claim because “[w]hile he alleges that video surveillance
cameras in the store were used to film him, he does not allege that his name, portrait, or voice
was used for any advertising purposes” and instead “specifically avers that the footage was used
for the entertainment of the employees.” (Dkt. No. 11, at 5). Plaintiff objects to the dismissal

2 Plaintiff cites the statutory provision as “42 U.S.C. § 12112(5)(A),” (Dkt. No. 1, ¶ 24), but it is clear from the text
that Plaintiff is referring to 42 U.S.C. § 12112(b)(5)(A).
recommendation, differentiating between the Magistrate Judge’s characterization “that the
footage was used for entertainment purposes” and his allegation that “he was used ‘as a prop for
entertainment purposes.’” (Dkt. No. 15, at 3). Plaintiff argues that the Magistrate Judge
incorrectly assumed “the footage was used solely by ‘the employees’”; that “Plaintiff is unaware

of any safeguards in place for which employees have access to the surveillance camera footage at
the USA Hockey Store in Lake Placid, NY and how these recordings were being safeguarded to
protect employees [sic] privacy”; that “Plaintiff was required to wear USA Hockey clothing so
any unauthorized access to Defendants constitutes an advertisement”; and that “[i]t can be
liberally construed that Plaintiff’s allegations that he was used as ‘a prop for entertainment
purposes’ shows that Plaintiff was used for monetary gain for entertainment or trade purposes.”
(Id. at 3–4).
Section 50 of the New York Civil Rights Law states that: “A person, firm or corporation
that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of
any living person without having first obtained the written consent of such person, or if a minor

of his or her parent or guardian, is guilty of a misdemeanor.” “Section 51 creates a cause of
action for the invasion of the ‘right to privacy’ granted by Section 50.” Burck v. Mars, Inc., 571
F. Supp. 2d 446, 451 (S.D.N.Y. 2008) (citing Zacchini v. Scripps-Howard Broad. Co., 433 U.S.
562, 571 n.6 (1977)). “To maintain a civil action under section 51, a plaintiff must show that the
defendant (1) used his name, portrait, picture, or voice, (2) for advertising or trade purposes, (3)
without his written consent.” Id. (citing Allen v. Nat’l Video, Inc., 610 F. Supp. 612, 621
(S.D.N.Y. 1985)).
As Magistrate Judge Stewart correctly stated, Plaintiff has not alleged any facts that
suggest his name, portrait, picture, or voice were used for advertising or trade purposes.
Plaintiff’s objections amount to an argument that video of him could have been used for
advertising or trade purposes and that he had unanswered questions regarding who had access to
the video. This is different from actually alleging such events occurred and as such is insufficient
to state a claim. See Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007) (explaining that with regards

to a complaint, the “[f]actual allegations must be enough to raise a right to relief above the
speculative level” (citation omitted)).
Accordingly, the Court agrees with the Report-Recommendation that Plaintiff’s claim of
a violation of his right to privacy should be dismissed with leave to amend.
3. Defamation
Plaintiff alleges that Defendant Matthew Nyman made a defamatory statement by telling
“the Village of Lake Placid Police Department that Plaintiff ‘harassed’ him.” (Dkt. No. 1, ¶ 39).
The Magistrate Judge found that “Plaintiff’s brief allegations” lacked the “level of specificity”
required to plead the elements of a defamation claim and recommended dismissal. (Dkt. No. 11,
at 6). Plaintiff objects to the Magistrate’s Judge’s finding regarding the lack of specificity. (Dkt.
No. 15, at 4–5).

“Under New York law, to state a claim for defamation, a plaintiff must allege ‘(1) a
written [or spoken] defamatory statement of and concerning the plaintiff, (2) publication to a
third party, (3) fault, (4) falsity of the defamatory statement, and (5) special damages or per se
actionability.’” Kesner v. Dow Jones & Co., Inc., 515 F. Supp. 3d 149, 169–70 (S.D.N.Y. 2021)
(quoting Palin v. N.Y. Times Co., 940 F.3d 804, 809 (2d Cir. 2019)).
Magistrate Judge Stewart’s assessment regarding the specificity of Plaintiff’s defamation
claim was correct. “A claim is facially plausible ‘when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.’” Tannerite Sports LLC, v. NBCUniversal News Grp., 864 F.3d 236, 247 (2d Cir. 2017)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Plaintiff has not pled factual allegations
sufficient to indicate fault and falsity of a defamatory statement, but has instead alleged little
“more than labels and conclusions” and “a formulaic recitation of the elements of a cause of
action.” See Bell Atl. Corp., 550 U.S. at 555 (citation omitted); see also Dkt. No. 1, ¶¶ 39

(“Matthew Nyman made a statement to the Village of Lake Placid Police department that
Plaintiff ‘harassed’ him.”), 41 (“Matthew Nyman made false statements knowingly and
maliciously with intent to injure Plaintiff.”)). While Plaintiff does allege that Defendant “Nyman
knew that Plaintiff was seeking clarification over the use of cameras as previously discussed,”
(id. ¶ 40), such a statement by itself contains too little information to evaluate whether Defendant
Nyman’s statement that Plaintiff “harassed” him was false. See Tannerite Sports LLC, 864 F.3d
at 247 (“Because falsity is an element of New York's defamation tort, and ‘falsity’ refers to
material not substantially true, the complaint in this case must plead facts that, if proven, would
establish that the defendant’s statements were not substantially true.”). Finally, Plaintiff does not
plead any facts suggesting special damages or per se actionability. See Kesner, 515 F. Supp. 3d

at 171 (“Special damages are those that involve the ‘loss of something having economic or
pecuniary value which must flow directly from the injury to reputation caused by the
defamation.’” (citation omitted)); id. (“Statements that are defamatory per se ‘are actionable
without pleading and proof of special damages,’” including “those that ‘charge the plaintiff with
a serious crime’ and those that ‘tend to injure another in his or her trade, business or
profession.’” (citations omitted)).
Accordingly, the Court agrees with the Report-Recommendation that Plaintiff’s
defamation claim against Defendant Nyman should be dismissed with leave to amend.
B. Appeals of Magistrate Judge Decisions
Plaintiff also appeals the Magistrate Judge’s decisions to: (1) deny Plaintiff’s requests to
issue summonses; and (2) deny Plaintiff’s motion to waive PACER fees. (Dkt. Nos. 14, 16). The
Court finds that neither decision is “clearly erroneous or contrary to law.” See 28 U.S.C.
§ 636(b)(1)(A); Fed. R. Civ. P. 72(a).

1. Denial of Request to Issue Summonses
On January 23, 2024, Plaintiff filed a letter motion requesting the issuance of four
proposed summonses pursuant to Rule 4(b) of the Federal Rules of Civil Procedure. (Dkt. No. 5).
Plaintiff asserted that the summonses should be issued as the Complaint had been filed and “[t]he
summons [sic] have been properly completed and presented to this Court,” arguing that “[t]he
pending Motion for Leave in Forma Pauperis in this matter does not impact the issuance of a
summons.” (Dkt. No. 5, at 1). In an Order entered on January 25, 2024 ("January Order”),
Magistrate Judge Stewart denied Plaintiff’s request as “premature” because the Court had not yet
ruled on Plaintiff’s motion for IFP status or completed an “initial review of the Complaint[]
pursuant to 28 U.S.C. § 1915.” (Dkt. No. 6, at 3). Magistrate Judge Stewart explained that for

purposes of Rule 4(b), a complaint is considered filed “when IFP status is granted or the
appropriate filing fee is paid, rather than at the time a complaint is delivered to the clerk of a
court.” (Id. (quoting Truitt v. Cnty. Of Wayne, 148 F.3d 644, 648 (6th Cir. 1998)). Plaintiff
appeals this decision on the grounds that refusing to issue the summonses violates Rule 4 and
constitutes unequal treatment under the Fifth Amendment. (Dkt. No. 14, at 1–4).
Here, the Magistrate Judge correctly applied the law. Courts in the Second Circuit have
found that a “[p]laintiff’s action was not properly filed until this Court granted his IFP
application.” Perkins v. Napoli, No. 8-cv-6248, 2012 WL 5464607, at *3, 2012 U.S. Dist. LEXIS
160534, at *9 (W.D.N.Y. Nov. 8, 2012) (citing Romand v. Zimmerman, 881 F. Supp. 806, 809
(N.D.N.Y. 1995)). Therefore, as Plaintiff’s IFP application was still pending at the time Plaintiff
requested the issuance of the summonses and the filing fee had not been paid, Magistrate Judge
Stewart’s finding that Plaintiff’s Complaint had not yet been filed for purposes of Rule 4(b) was
neither clearly erroneous nor contrary to law. Furthermore, treating litigants differently based on

IFP status does not implicate a suspect class, and thus does not constitute a Fifth Amendment
violation. See Dicara v. Conn. Educ. Dep’t, No. 8-cv-627, 2008 WL 5083622, at *2, 2008 U.S.
Dist. LEXIS 96372, at *5 (D. Conn. Nov. 26, 2008) (“[P]overty is not a suspect classification for
the purposes of equal protection analysis.” (citations omitted)). Plaintiff’s appeal of the January
Order is therefore denied.
2. Denial of Motion to Waive PACER Fees
On February 28, 2024, Plaintiff filed a motion to waive PACER fees. (Dkt. No. 12).
Plaintiff asserted two arguments in support of his motion. First, Plaintiff argues that because
Magistrate Judge Stewart failed to include the docket number for a case cited in the January
Order as “Arroyo v. Georgia, 2023 WL 4539770, at *4 (N.D. Ga. May 30, 2023[)]”, Plaintiff had
to “search[] for an unknown docket number . . . accruing fees in the process.” (Dkt. No. 12, at 1–

2 (quoting Dkt. No. 6, at 3)). Second, Plaintiff argued that his PACER fees should be waived
due to his indigence, noting that his IFP application had been granted on February 20, 2024. (Id.
at 2–3 (citing Dkt. No. 9)). On March 6, 2024, Magistrate Judge Stewart issued a text order
denying Plaintiff’s motion. (Dkt. No. 13 (“Text Order denying . . . Motion to Waive PACER
Fees.”)). Plaintiff appeals the Magistrate Judge’s denial of his motion on the basis that he has
shown good cause to waive PACER fees and that the text order, issued without further
explanation, was “not appropriate” and “has created the appearance that the Magistrate Judge
will not provide rights to the poor.” (Dkt. No. 16, at 2–4).
As Plaintiff himself is aware, (see id. at 1), a Magistrate Judge is not required to issue a
written order when ruling on non-dispositive matters, Fed. R. Civ. P. 72(a) (“When a pretrial
matter not dispositive of a party’s claim or defense is referred to a magistrate judge to hear and
decide, the magistrate judge must promptly conduct the required proceedings and, when

appropriate, issue a written order stating the decision.”) (emphasis added).
Moreover, the decision itself is not clearly erroneous or contrary to law. PACER itself
provides for “four automatic fee exemptions.” In re Club Ventures Investments LLC, 507 B.R.
91, 99 (S.D.N.Y. 2014) (citation omitted); see also Options to Access Records If You Cannot
Afford PACER Fees, https://pacer.uscourts.gov/my-account-billing/billing/options-access-
records-if-you-cannot-afford-pacer-fees (last accessed Apr. 4, 2024) (allowing users to “access
$30 or less worth of court records within a quarterly billing cycle,” as well as court opinions for
free). “[A] party seeking a discretionary exemption cannot rely on his in forma pauperis status
alone. The party must demonstrate that an exemption beyond the four automatic exemptions ‘is
necessary . . . to avoid unreasonable burdens and to promote public access to information.’” In re

Club Ventures Investments LLC, 507 B.R. at 99 (citation omitted). As Plaintiff failed to explain
why the automatic exemptions are not sufficient for his purposes, the Court finds Magistrate
Judge Stewart’s denial of Plaintiff’s motion for a waiver of PACER fees was neither clearly
erroneous nor contrary to law and is therefore affirmed. See Oliva v. Brockwood Coram I, LLC,
No. 14-cv-2513, 2015 WL 1966357, at *2, 2015 U.S. Dist. LEXIS 57215, at *3–4 (E.D.N.Y.
Apr. 30, 2015) (“Because [the plaintiff] does not explain how that level of access is insufficient
for his purposes, he falls short of establishing that the regular usage fee constitutes an
unreasonable burden.”). Plaintiff’s appeal is therefore denied.
IV. CONCLUSION
For these reasons, it is hereby
ORDERED that Magistrate Judge Stewart’s Report-Recommendation (Dkt. No. 11) is
ADOPTED; and it is further;
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED with leave to amend;
and it is further;
ORDERED that any amended complaint must be filed within thirty (30) days of the
date of this Order. Any amended complaint must be a complete pleading which will replace the
current complaint in total; and it is further;
ORDERED that if Plaintiff files a timely amended complaint, it shall be referred to
Magistrate Judge Stewart for review; and if Plaintiff fails to file a ttmely amended complaint, the
Clerk is directed to close this case; and it is further;
ORDERED that Plaintiff's appeal (Dkt. No. 14) of the January Order (Dkt. No. 6) is
DENIED in its entirety; and it is further;
ORDERED that Plaintiff's appeal (Dkt. No. 16) of the order denying a waiver of
PACER fees (Dkt. No. 13) is DENIED in its entirety; and it is further;
ORDERED that the Clerk serve a copy of this Order on Plaintiff in accordance with the
Local Rules.
IT IS SO ORDERED.

Dated: April 17, 2024
Syracuse, New York
Prgnr Ba (Coane
Brenda K. Sannes
Chief U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10316509. Public record. Not legal advice.