Cordaro v. Department of Defense

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

Michael Cordaro,

Plaintiff,

DECISION and ORDER

v.

22-cv-6027-EAW-MJP

Lloyd J. Austin, III,

Defendant.

INTRODUCTION

Plaintiff pro se Michael Cordaro moves for the Court to grant him

in forma pauperis status. (ECF Nos. 47 & 48, Aug. 23, 2024.) For the

reasons that follow, the Court DENIES his motions.

APPLICABLE LAW

“The federal in forma pauperis statute represents a significant

effort to ensure the ability of impoverished litigants to prosecute meri-

torious claims or defenses without disadvantage.” Rosa v. Doe, 86 F.4th

1001, 1004 (2d Cir. 2023). “The Supreme Court has described the in

forma pauperis statute as aiming ‘to lower judicial access barriers to the

indigent.’” Id. (quoting Denton v. Hernandez, 504 U.S. 25, 31 (1992)).

Accordingly, 28 U.S.C. § 1915(a)(1) states that “any court of the

United States may authorize the commencement, prosecution or defense

of any suit, action or proceeding, civil or criminal, or appeal therein,

without prepayment of fees or security therefor, by a person who

submits an affidavit that includes a statement of all assets.” The affida-

vit must state that he or she “is unable to pay such fees or give security

therefor.” Id. Further, Section 1915 requires that the “affidavit [ ] state

the nature of the action, defense or appeal and [the] affiant’s belief that

the person is entitled to” a fee waiver. Id. (alterations added).

Section 1915 thus “permits an indigent litigant to commence an

action in a federal court without prepayment of the filing fee that would

ordinarily be charged.” Rasheen v. Adner, 356 F. Supp. 3d 222, 228–29

(N.D.N.Y. 2019) (quotation omitted); see also Arzuaga v. Quiros, 781

F.3d 29, 34 (2d Cir. 2015) (noting that Section 1915 authorizes “litigants

to proceed in forma pauperis when ‘unable to pay’ filing fees”). Once a

plaintiff files his or her lawsuit and accompanying in forma pauperis

application, the Court must then review the complaint under 28 U.S.C.

§ 1915(e)(2). See Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d Cir.

1983) (“If the plaintiff demonstrates poverty, he should be permitted to

file his complaint in forma pauperis. Then the court may properly con-

sider dismissing the complaint as frivolous.”).

In sum, a plaintiff asking to proceed in forma pauperis needs to

jump through two hoops: First, the plaintiff must show indigence. It is

the plaintiff’s burden to do so. Id. Still, “[a] litigant need not be ‘abso-

lutely destitute’ to qualify for in forma pauperis status but need only

demonstrate” an inability to “pay or give security for the costs and still

be able to provide [him or herself] and dependents with the necessities

of life.” Rosa, 86 F.4th at 1005 (alterations added) (quoting Adkins v. E.I.

DuPont de Nemours & Co., 335 U.S. 331, 338 (1948)); see also Potnick,

701 F.2d at 244 (“Section 1915(a) does not require a litigant to demon-

strate absolute destitution; no party must be made to choose between

abandoning a potentially meritorious claim or foregoing the necessities

of life.”). “An affidavit to proceed in forma pauperis is sufficient if it in-

dicates that one cannot, because of his poverty, afford to pay the costs of

litigation and still provide himself and his dependents with the necessi-

ties of life.” Kilichowski v. Hocky, No. 99-CV-2874, 1999 WL 504285, at

*1 (E.D.N.Y. July 5, 1999).

Second, the plaintiff’s complaint must pass through the required

screening process. See, e.g., United States v. Bommer, 613 F. Supp. 3d

712, 717 (W.D.N.Y. 2020) (“Section 1915 requires the Court to conduct

an initial screening of complaint filed by civil litigants proceeding in

forma pauperis to ensure that the case goes forward only if it meets cer-

tain requirements. (quoting Guess v. Jahromi, No. 6:17-CV-

06121(MAT), 2017 WL 1063474, at *2 (W.D.N.Y. Mar. 21, 2017))). Under

Section 1915(e), the district court is required to dismiss a complaint filed

in forma pauperis if the action is frivolous or malicious, fails to state a

claim on which relief may be granted, or seeks monetary relief against

a defendant who is immune from such relief. 28 U.S.C.

§§ 1915(e)(2)(B)(i)–(iii).

DISCUSSION

Here, Plaintiff filed his complaint and (eventually) paid the filing

fee himself.1 A review of the docket accordingly discloses that the Court

did not screen his complaint. Cf. Bommer, 613 F. Supp. 3d at 717 (noting

that the in forma pauperis statute “requires the Court to conduct an in-

itial screening of complaints filed by civil litigants proceeding in forma

pauperis[] to ensure that the case goes forward only if it meets certain

requirements” (quotation omitted)). After finding Plaintiff’s first motion

to proceed in forma pauperis deficient, Chief Judge Wolford accordingly

directed Plaintiff to “either submit a renewed application for in forma

pauperis status or pay the filing fee of $402.00.” (Order at 2–3, ECF No.

5, Oct. 11, 2022.)

Plaintiff has thus forfeited the opportunity to proceed in forma

pauperis. “Whenever a plaintiff files a complaint, he must either (1) pay

the filing fee and administrative fee, or (2) submit a motion to proceed

in forma pauperis.” (Order at 2–3, ECF No. 2, Feb. 22, 2022 (citing 28

U.S.C. §§ 1914(a) & 1915(a)).) Given that choice, Plaintiff opted to pay

1 There is no CM/ECF number associated with this entry, but the Court

notes that it states: “Filing fee: $402 … from Michael Cordaro,” dated October

26, 2022.

the filing fee, avoiding the screening process for his complaint. But in so

doing Plaintiff knew, or should have known, that he was not proceeding

in forma pauperis.2 Plaintiff may not pay the fee and request to proceed

in forma pauperis later. Indeed, to allow Plaintiff to proceed in forma

pauperis now would amount to an end-run around the screening require-

ment.

Yet Plaintiff asserts that because this Court granted him in forma

pauperis status in a separate case, it should do so here. The Court disa-

grees. Because a plaintiff must pay the filing fee or request in forma

pauperis status at the beginning of his or her case, it follows that this is

a case-by-case analysis. Each time a plaintiff brings a new case in this

District, they must submit a new in forma pauperis application. The

Chief Judge’s earlier order in this case, quoted above, plainly indicates

as much. (Order at 2–3, ECF No. 2.) Further, that the Court found Plain-

tiff indigent over six months ago does not demonstrate that Plaintiff re-

mains indigent.

This does not leave Plaintiff without recourse. “A party who has

not sought in forma pauperis status,” or has forgone it, “but claims indi-

gency may move for waiver of payment of” his or her “share of the

2 Further, Plaintiff is not eligible for a return of the filing fee he already

paid. See Robinson v. Kotler, No. 1:23-cv-106230GHW, 2024 WL 839049, at *2

(S.D.N.Y. Feb. 28, 2024) (“Once paid, there are no refunds of the filing fee re-

gardless of the outcome of the plaintiff’s claims.”).

mediator’s fee[.]” Romanac v. Town of Cheektowaga, New York, No. 17-

CV-334S, 2021 WL 3721133, at *2 (W.D.N.Y. Aug. 23, 2021) (discussing

Western District of New York Alternative Dispute Resolution Plan

§ 5.4(E)). Generally, however, even if a plaintiff has in forma pauperis

status, that plaintiff remains responsible for normal litigation costs. See

Brown v. De Filippis, 125 F.R.D. 83, 85 (S.D.N.Y. 1989) (noting that pro-

ceeding in forma pauperis “is not the equivalent of a full waiver of fees,”

rather, in forma pauperis status “entitles a plaintiff to a waiver of the

prepayment of court costs” (citations omitted)).

While in other circumstances the Court might reconstrue Plain-

tiff’s pending motions to proceed in forma pauperis as motions for the

waiver of mediation fees, the Court declines to do so here. The Court

cannot determine from them whether Plaintiff is indigent. In response

to the question “[d]o you own any real estate, stocks, bonds,” etc., Plain-

tiff indicates “yes,” but failed to “describe the property in detail.” (Mot.

to Proceed In Forma Pauperis (“IFP”) at 2, ECF No. 48, Aug. 23, 2024.)

Rather, Plaintiff cursorily states “low value.” (Id.) Plaintiff must provide

a detailed list of all real estate, stocks bonds, or other valuable property

and the estimated value of each item, excluding “ordinary household

furnishings and clothing.” (Id.)

Curiously, Plaintiff also indicates he is using “limited savings” to

make payments on a loan (or perhaps a mortgage), yet he states he has

no money in either a checking or savings account. (Id.) Plaintiff must

disclose how he is making payments on this loan.

Relatedly, Plaintiff must provide information about whether he

can obtain financial resources from those who ordinarily provide him

with necessities. Pierre v. City of Rochester, No. 16-CV-6428 CJS, 2018

WL 10072449, at *1 (W.D.N.Y. Dec. 13, 2018) (“Where a litigant is sup-

ported or assisted by another person, the Court may consider that per-

son’s ability to pay the filing fee.”) Plaintiff indicates that he is obtaining

assistance from his parents in paying a loan. (Mot. to Proceed IFP at 2,

ECF No. 48.) Plaintiff must disclose whether such relatives will assist

him with the costs of this litigation.

If the Court is going to approve Plaintiff’s request for a waiver of

mediation fees, the Court directs that Plaintiff provide the information

noted in this order. To ensure that the Court has sufficient time to decide

a motion under Section 5.4(E) of the ADR Plan before the first mediation

conference, the Court ORDERS Plaintiff to submit such a motion for

waiver of mediation fees by no later than September 20, 2024. The Court

cautions Plaintiff as follows:

• First, failure to submit a motion by that date may result in Plain-

tiff being required to pay mediation fees.

• Second, failure to provide the information required herein may

result in denial of such motion. In that event, the Court may re-

quire Plaintiff to pay mediation fees.

• Finally, if the Court denies Plaintiff’s forthcoming motion pursu-

ant to Section 5.4(E) of the ADR Plan, the Court will require

Plaintiff to pay mediation fees for this case.

CONCLUSION

For these reasons, the Court DENIES Plaintiff’s motions to pro-

ceed in forma pauperis. (ECF Nos. 47 & 48.) Plaintiff may not proceed

in forma pauperis in this case.

As discussed, Plaintiff may submit a new motion for waiver of the

fees for mediation. Section 5.4(E) of this Court’s Alternative Dispute

Resolution (“ADR”) Plan states: “A party who has not sought in forma

pauperis status, but is financially unable to pay all or part of the pro

rata share of the Mediator’s fee, may move for a waiver of the fee re-

quirement on a form provided by the Court.” Id. If Plaintiff brings

such a motion, it should be made returnable before the under-

signed and is due by no later than September 20, 2024.

SO ORDERED.

Dated: August 27, 2024

Rochester, NY /s/ Mark W. Pedersen

MARK W. PEDERSEN

United States Magistrate Judge