Opinion

McQueen v. Tomins

Court
District Court, E.D. New York
Filed
Apr 23, 2025
Cited by
0 cases
Authority
More cited than 34.9%

“A minor or incompetent person normally lacks the capacity to bring suit for himself.” citing N.Y. C.P.L.R. 1201

How later courts described this case

  • “A minor or incompetent person normally lacks the capacity to bring suit for himself.” citing N.Y. C.P.L.R. 1201
  • “because pro se means to appear for one’s self, a person may not appear on another person’s behalf”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------x

HADIQIA McQUEEN, ALONDA BROWNE,

DAYQUAN BULLOCK, and

S.S.-M, Minor,

Plaintiffs,

ORDER

-against-

24-CV-8596 (LDH)(LB)

SGT DS RAYMOND TOMINS, DT3

ROBERT KOEHLER, JOHN DOE WITNESS

OFFICER(S), PO EDGAR RAMIREZ, PO

MALKA RAUL, PO RYAN RAMOS, PO

SHANEL BURGHER, LT SHENA

RICHARDS, PO BERVENS HYPPOLITE,

NYS DOCCS INV. THOMAS KAM, US

MARSHALS CRIMINAL INVESTIGATOR

SANDY RAO, DT3 HARRY HUGHES, and

DT3 PEDRO NIEVES,

Defendants.

--------------------------------------------------------x

LASHANN DEARCY HALL, United States District Judge:

Plaintiffs Hadiqia McQueen, Alonda Browne, Dayquan Bullock, and S.S.-M., a minor,1

proceeding pro se, commenced this action on December 13, 2024. (Compl., ECF No. 1.)

However, Plaintiffs failed to either pay the filing fee or seek a waiver of the fee by filing an

application to proceed in forma pauperis (“IFP”). By letters dated December 17, 2024, the

Clerk of Court informed Plaintiffs that they must file an IFP application or pay the filing fee

within 14 days in order to proceed with this action. (See Notices of Deficient Filing, ECF Nos.

1 Minors may not proceed in a court action without counsel. See Berrios v. New York City Hous. Auth., 564 F.3d

130, 134 (2d Cir. 2009) (“A minor or incompetent person normally lacks the capacity to bring suit for himself.”

citing N.Y. C.P.L.R. 1201). In New York State, a plaintiff must be at least 18 years of age in order to proceed on

his or her own behalf. See N.Y. C.P.L.R. 105. Moreover, a non-attorney parent or legal guardian cannot represent

his or her child or ward. See Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284 (2d Cir. 2005); Iannaccone v.

Law, 142 F.3d 553, 558 (2d Cir. 1998) (“because pro se means to appear for one’s self, a person may not appear on

another person’s behalf”). Accordingly, S.S-M. is dropped from this Complaint without prejudice to rejoining if

represented by counsel.

2-4.) On January 29, 2025, the Court received IFP applications from Plaintiffs Hadiqia

McQueen, Alonda Browne, and Dayquan Bullock. (ECF Nos. 6-8.) However, the applications

do not contain sufficient information for the Court to determine whether they are entitled to

proceed IFP, as each application claims zero income, assets, and expenses. See Id.

Under 28 U.S.C. § 1914(a), the filing fee to commence a civil action is $350, plus an

additional cost of $55, for a total fee of $405. Under 28 U.S.C. § 1915, the Court may waive the

filing fee upon finding a plaintiff to be indigent. A litigant qualifies to proceed IFP if he

“cannot because of his poverty ‘pay or give security for” the costs of filing “and still be able to

provide’ himself and dependents ‘with the necessities of life.’” Adkins v. E.I. DuPont de

Nemours & Co., 335 U.S. 331, 339 (1948). A plaintiff seeking to proceed IFP must submit an

affidavit stating “that the person is unable to pay” filing fees “or give security therefor” and must

also include “a statement of all assets” the person possesses. 28 U.S.C. § 1915(a)(1). A court

may dismiss a case that has been filed IFP if the court determines that the plaintiff’s “allegation

of poverty is untrue.” 28 U.S.C. § 1915(e)(2)(A). The question of whether a plaintiff qualifies

for IFP status is within the discretion of the district court. Chowdhury v. Sadovnik, No. 17-CV-

2613 (PKC), 2017 WL 4083157, at *1 (E.D.N.Y. Sept. 14, 2017) (citing Pinede v. New York

City Dep't of Env't Prot., No. 12-CV-06344 CBA, 2013 WL 1410380, at *2 (E.D.N.Y. Apr. 8,

2013); DiGianni v. Pearson Educ., No. 10 CV 206 RJD LB, 2010 WL 1741373, at *1 (E.D.N.Y.

Apr. 30, 2010)).

In this case, Plaintiffs Hadiqia McQueen, Alonda Browne, and Dayquan Bullock each

state in their respective IFP applications that they have no income, assets, or living expenses.

(See ECF Nos. 6-8.) Yet, their Complaint claims that McQueen and Browne are leaseholders on

the apartment where the events giving rise to this litigation occurred. (Compl. at 10.)2 The

applications do not explain how Plaintiffs meet their living expenses with no assets and no

income. On the basis of Plaintiffs’ incomplete applications, the Court is unable to find that they

are entitled to proceed IFP. Accordingly, Plaintiffs’ motions for leave to proceed in forma

pauperis are denied without prejudice. The Court directs Plaintiffs to each complete the Long

Form IFP application or to pay the $405 filing fee to the Clerk of Court of the Eastern District of

New York within 14 days from the date of this Order. If Plaintiffs fail either to submit

completed IFP applications or to remit the filing fee within the time allowed, the action shall be

dismissed without prejudice.

The Clerk of Court is requested to amend the caption to replace the full name of the

minor plaintiff with initials and to dismiss that individual from this action. The Clerk is also

requested to send a copy of this order to the remaining three Plaintiffs, along with copies of the

Long Form IFP application.3

SO ORDERED.

/s/ LDH

LASHANN DEARCY HALL

United States District Judge

Dated: April 23, 2025

Brooklyn, New York

2 As the Complaint includes addenda and exhibits that are not numbered, the Court refers to the pages assigned by

the Electronic Case Filing System (“ECF”).

3 A fillable version of the Long Form IFP application is also available on the Court’s website at

https://www.uscourts.gov/sites/default/files/ao239 1.pdf.

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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