Case Information

*0 FILED CLERK U.S. DISTRICT COURT EASTERN DISTRICT OF NEW YORK LONG ISLAND OFFICE *1 UNITED STATES DISTRICT COURT For Online Publication Only

EASTERN DISTRICT OF NEW YORK

-----------------------------------------------------------------------X

STACEY FISHER,

Plaintiff,

ORDER -against- 17-CV-127 (JMA)(GRB) ROSICKI, ROSICKI AND ASSOCIATES, SHELLPOINT

MORTGAGE SERVICING, CITIMORTGAGE INC.,

CHRISTIANA TRUST, WILMINGTON SAVINGS FUND 5/2/2017 12:54 pm SOCIETY FSB,

Defendants.

-----------------------------------------------------------------------X

AZRACK, United States District Judge:

On January 10, 2017, pro se plaintiff Stacey Fisher (“plaintiff”) commenced this action against Rosicki, Rosicki and Associates, Shellpoint Mortgage Servicing, Citimortgage Inc.,

Christiana Trust, and Wilmington Savings Fund Society FSB (collectively, “defendants”),

seeking to challenge a mortgage foreclosure action in state court pursuant to the New York

Banking Law, the New York Real Property Acts Law and the Constitution’s due process clause.

Accompanying the complaint is an application to proceed in forma pauperis .

Upon review of the declaration accompanying plaintiff’s application to proceed in forma pauperis , the Court finds that plaintiff’s financial status disqualifies her from proceeding in forma

pauperis . See U.S.C. § 1915(a)(1). Accordingly, plaintiff is directed to pay the $400.00 filing

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

prejudice.

To qualify for 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. E.I. Du Pont De Nemours & Co., Inc., 335 U.S. 331, 339, 69 S. Ct. 85, 93 L. Ed.

43 (1948) (internal quotation marks and citations omitted). Plaintiff’s affidavit fails to meet this

standard. Plaintiff reports that she is employed at Northwell Health CEMS and earns $2,185 net

bi-weekly. (Docket Entry No. 2 at ¶ 2.) In addition, plaintiff has checked the box to indicate that

she receives income from “a business, profession, or other self-employment” although she has not

provided the amount she has received and the amounts she expects to receive in the future. ( See

id. ¶ 3.) Against this income, plaintiff reports monthly expenses totaling approximately $1,600.

( Id . ¶ 6.) Plaintiff also avers that she has approximately $7,000 in cash or in a checking or savings

account. ( Id . ¶ 5.) Given plaintiff’s financial position as set forth in her declaration, her motion

to proceed in forma pauperis is DENIED, and she is directed to pay the $400.00 filing fee

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

prejudice.

Plaintiff is cautioned that, insofar as she seeks to challenge an order of foreclosure and sale in a related state court case bearing Index Number 10265/2010, the Rooker-Feldman doctrine may

bar her claims. Plaintiff is further cautioned that, insofar as she seeks to pursue claims alleging a

deprivation of her due process rights, such claims require that the challenged conduct be

undertaken “under color of state law.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010)

(“Federal claims . . . for damages brought under 42 U.S.C. § 1983, which provides a method for

vindicating federal rights elsewhere conferred, including the Constitution, [requires that] [t]he

conduct at issue must have been committed by a person acting under color of state law.”) (internal

quotation marks and citation omitted). Given that all of the defendants appear to be private

parties who do not act under color of state law, plaintiff’s claims pursuant to 42 U.S.C. § 1983 are

likely implausible. And, to the extent that plaintiff seeks to pursue state law claims against the

defendants in this Court, it is likely that this Court lacks subject matter jurisdiction given that

complete diversity, as alleged by plaintiff, does not exist. (See Compl. ¶ 1; see also 28 U.S.C. §

1332.)

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 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 Court is directed to mail a copy of this order to pro se plaintiff.

SO ORDERED . _____/s/ (JMA)_________________

Joan M. Azrack United States District Judge Dated: May 2, 2017

Central Islip, New York