Case Information
*1 UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
MICHAEL P. McWILLIAMS,
Plaintiff,
5:23-CV-0728 v. (DNH/ML) PAUL A. SANDY, in his official capacity as
Chief of Police for the Cortland City Police Dep’t;
DAVID GUERRERA, in his official capacity as
Deputy Chief of Police for Cortland City Police
Dep’t; CORTLAND CITY POLICE DEP’T –
CRIMINAL INVESTIGATION DIV.; and
CORTLAND CITY POLICE DEP’T,
Defendants.
_____________________________________________
APPEARANCES: OF COUNSEL: MICHAEL P. McWILLIAMS
Plaintiff, Pro Se
98 Flandreau Avenue
New Rochelle, New York 10804
MIROSLAV LOVRIC, United States Magistrate Judge
REPORT and RECOMMENDATION
I. INTRODUCTION
Plaintiff Michael P. McWilliams (“Plaintiff”) commenced this action pro se on June 1, 2023, by the filing of a Complaint with the District Court for the Southern District of New York. (Dkt. No. 1.) Plaintiff did not pay the filing fee for this action and sought leave to proceed in forma pauperis (“IFP”). (Dkt. No. 2.) On September 19, 2023, the undersigned denied Plaintiff’s IFP application and directed Plaintiff to, within thirty days, pay the $402.00 filing fee. *2 (Dkt. No. 9.) The Court’s order of September 19, 2023, was served via regular mail at Plaintiff’s address of record. ( Id .) Despite the passage of more than thirty days since the issuance of the Court’s order dated September 19, 2023, Plaintiff has taken no further action in this case. ( See generally docket sheet.)
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, 1 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 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).
In this instance, due to the Court’s determination that Plaintiff does not qualify for leave to proceed without prepayment of fees, and Plaintiff having failed to comply with this Court’s order dated September 19, 2023, I now recommend that Plaintiff’s Complaint be dismissed for failure to pay the required filing fee. See, e.g., Walker v. Vill. Ct. , 17-CV-0390, 2017 WL 4220415, at *2 (N.D.N.Y. Aug. 4, 2017) (Peebles, M.J.) (citing Waters v. Camacho , 288 F.R.D. 70, 71 (S.D.N.Y. 2013)) (recommending dismissal of the plaintiff’s complaint where he failed to 1 The filing fee in this district increased to $405 as of December 1, 2023. However, the filing fee was $402 at the time that Plaintiff commenced this action.
2 The language of that section is ambiguous because it suggests an intent to limit availability of IFP status to prison inmates. 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 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).
2 *3 either pay the required filing fee or demonstrate that he qualifies for leave to proceed without prepayment of fees), report and recommendation adopted by , 2017 WL 4221069 (N.D.N.Y. Sept. 20, 2017) (Hurd, J.).
ACCORDINGLY , it is respectfully RECOMMENDED that Plaintiff’s Complaint (Dkt. No. 1) be DISMISSED without prejudice ; and it is further
ORDERED that the Clerk of the Court shall file a copy of this report and recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules. 3
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. 4 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: December __, 2023 15
Binghamton, New York 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). 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). If the 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).
3
Walker v. Village Court, Not Reported in Fed. Supp. (2017) were referred to me for review. Based upon that review, I issued an order on May 10, 2017, denying plaintiff's IFP 2017 WL 4220415 application, without prejudice, and requiring plaintiff to either Only the Westlaw citation is currently available. pay the statutory filing fee of $400.00 or submit a proper United States District Court, N.D. New York. application for leave to proceed without prepayment of fees Alfred Marion WALKER, Plaintiff, on or before June 2, 2107. Dkt. No. 6. Despite the passage of that deadline, plaintiff has taken no further action in this case. v.
VILLAGE COURT, et al., Defendants. II. DISCUSSION
Civil Action No. 3:17-CV-0390 (DNH/DEP) Upon commencement of an action in a federal district court, | the statutory filing fee, currently set at $400, must ordinarily Signed 08/04/2017 be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed IFP if it determines that he is
Attorneys and Law Firms unable to pay the required filing fee. 28 U.S.C. § 1915(a) ALFRED MARION WALKER, c/o 60 Saratoga Avenue, (1). Apartment 114, Binghamton, NY 13901, Pro se.
Notwithstanding the reference in the document's title to “Application for In Forma pauperis,” plaintiff's most recent REPORT AND RECOMMENDATION submission fails to contain any information concerning his financial status. See generally Dkt. No. 4. Instead, plaintiff David E. Peebles, U.S. Magistrate Judge
insists that courts lack the authority to require payment of *1 Plaintiff Alfred Marion Walker, who is proceeding pro filing fees for court access, citing Crandall v. State of se , has commenced this action against the State of New Nevada , 73 U.S. 35 (1867). Id. at 2. That case, however, does York and various agencies and individuals associated with not so hold, and Congress has specifically authorized district Broome County and/or the City of Endicott, New York. courts to require payment of filing fees in order to commence Despite ample notice of the requirement that he either pay a actions. 28 U.S.C. § 1914(a) (“The clerk of each district statutory filing fee or submit a properly supported application court shall require the parties instituting any civil action ... to for leave to proceed in forma pauperis , he has failed to do pay a filing fee[.]” (emphasis added)). As was noted above, either. Accordingly, I recommend that plaintiff's complaint be district courts do retain the discretion, upon a proper showing, dismissed. to excuse the payment of the filing fee and grant IFP status to a plaintiff. 28 U.S.C. § 1915(a)(1); see Fridman , 195 I. BACKGROUND F. Supp. 2d at 536 & n.1. In this instance, however, due Plaintiff commenced this action on April 6, 2017. Dkt. No. 1. to plaintiff's failure to provide any information concerning Plaintiff's complaint names the State of New York and sixteen his finances, the court is unable to make any meaningful other defendants of varying descriptions as defendants, and assessment of his financial status and determine whether he sets forth five enumerated causes of action for trespass or qualifies for leave to proceed without prepayment of fees. “trespass on the case.” See generally id. Upon receiving plaintiff's complaint, District Judge David N. Hurd issued *2 Having failed to comply with this court's May 10, an order on April 11, 2017, directing administrative closure 2017 order, I now recommend that plaintiff's complaint be of the case in light of plaintiff's failure to pay the requisite dismissed for failure to pay the required filing fee or to obtain statutory filing fee or file an application to proceed in the leave to proceed IFP. See, e.g., Waters v. Camacho , 288 F.R.D. action in forma pauperis (“IFP”). Dkt. No. 3. 70, 71 (S.D.N.Y. 2013). Plaintiff thereafter submitted to the court a document entitled
“Writ Re: Amended Action And Application for In forma III. SUMMARY AND RECOMMENDATION pauperis” and “Writ of Error Qua Corum Nobis Residant.” Despite being placed on notice of the court's requirements, Dkt. No. 4. That document, as well as plaintiff's complaint, plaintiff has failed to either pay the required filing fee in this
Walker v. Village Court, Not Reported in Fed. Supp. (2017) case or to demonstrate that he qualifies for leave to proceed APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. without prepayment of fees. Accordingly, it is hereby Civ. P. 6(a), 6(d), 72; Roldan v. Racette , 984 F.2d 85 (2d Cir. 1993). RECOMMENDED that plaintiff's complaint in this action be
DISMISSED without prejudice. It is hereby ORDERED that the clerk of the court serve a
copy of this report and recommendation upon the parties in NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties accordance with this court's local rules.
may lodge written objections to the foregoing report. Such
objections must be filed with the clerk of the court within All Citations
FOURTEEN days of service of this report. 2 FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE Not Reported in Fed. Supp., 2017 WL 4220415
Footnotes 1 The language of that section is ambiguous, in that it suggests an intent to limit availability of IFP status
to prison inmates. 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”). Courts have construed that section, however, as making IFP status available to any litigant who can meet the governing 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). If you are proceeding pro se and are served with this report and recommendation by mail, three additional
days will be added to the fourteen-day period, meaning that you have seventeen days from the date the report and recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the 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). End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.
Walker v. Court, Not Reported in Fed. Supp. (2017) *1 Pro se plaintiff Alfred Marion Walker brought this action against various state and local agencies and employees. On 2017 WL 4221069 August 4, 2017, the Honorable David E. Peebles, United Only the Westlaw citation is currently available. States Magistrate Judge, advised by Report-Recommendation United States District Court, N.D. New York. that plaintiff's complaint be dismissed for failing to pay Alfred Marion WALKER, Plaintiff, either a statutory filing fee or submit a properly supported application for leave to proceed in forma pauperis, despite v. multiple opportunities to do so and advisement of same. No Village COURT; the State of New York; Village of objections to the Report-Recommendation have been filed. Endicott; Endicott Police Department; Officer Dunham, Badge # 470; Officer J Wanka, Badge # 478; Captain Based upon a careful review of the entire file and the Collins; Judge Alfonso Ortega; David Stokes; Karen recommendations of the Magistrate Judge, the Report- Micalizzi Tautero; C.O. Zachary Moor; Sgt Bixby, C.O.; Recommendation is accepted in whole. See 28 U.S.C. § C.O. Rick Borchardt; C.O. Dennis Rowd; C.O. Sean Bell; 636(b)(1). Broome County Jail; and Broome County, Defendants. Therefore, it is 3:17-CV-390 (DNH/DEP)
| ORDERED that
Signed 09/20/2017 1. This action is DISMISSED without prejudice; and Attorneys and Law Firms 2. The Clerk is directed to enter judgment accordingly and ALFRED MARION WALKER, c/o 60 Saratoga Avenue, close the file. Apartment 114, Binghamton, NY 13901, Plaintiff pro se.
IT IS SO ORDERED.
DECISION and ORDER All Citations
DAVID N. HURD, United States District Judge
Not Reported in Fed. Supp., 2017 WL 4221069 End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.