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Harris v. Rosenstein

United States District Court, D. Massachusetts

May 4, 2015

YONGDA HUANG HARRIS, Plaintiff,
v.
MICHAEL ROSENSTEIN and JEROD GINSBERG, Defendants.

MEMORANDUM AND ORDER

ALLISON D. BURROUGHS, District Judge.

For the reasons set forth below: (1) Plaintiff's motion (#2) for leave to proceed in forma pauperis is granted; (2) Plaintiff's motion (#2) to appoint counsel is denied without prejudice; and (3) Plaintiff's emergency motion (#6) is denied. If the plaintiff wishes to pursue this action, he must, within 35 days of the date of this Memorandum and Order, file an amended complaint. Failure to do so will result in dismissal of this action.

BACKGROUND

On March 11, 2015, plaintiff Yongda Huang Harris ("Harris"), a resident of Boston, filed a pro se complaint against his former criminal defense attorneys in Beverly Hills, California. See Complaint ("Compl."), Docket No. 1. Harris seeks to file a "criminal complaint" against the defendant attorneys who were hired "to defend him and secure his release on bail in a federal criminal case in Los Angeles on October 6, 2012." Id. at p. 3. Harris alleges that "both men conspired to defraud, threaten and extort substantial sums of money from Mr. Harris' family all while utilizing the resources of the legal system to do so." Id. Harris seeks "to have the Court order a special independent prosecutor to investigate and prosecute these men for violations of federal criminal law." Id. He also seeks "financial compensation." Id.

The complaint is accompanied by an Application to Proceed Without Prepayment of Fees and Affidavit and Motion to Appoint Counsel. See Docket. A month after filing this action, on April 10, 2015, Harris filed an emergency motion titled "Motion to Expedite Crime Victim Processing by the Court." See Docket No. 6.

DISCUSSION

I. Filing Fee

A litigant filing a complaint in this Court must either (1) pay the $350.00 filing fee and the $50.00 administrative fee[1], see 28 U.S.C. § 1914(a) ($350.00 filing fee for all non-habeas civil actions), or (2) file a motion for leave to proceed without prepayment of the filing fee. See 28 U.S.C. § 1914 ($350.00 filing fee); § 1915 (proceedings in forma pauperis). The standard in 28 U.S.C. § 1915(a)(1) for in forma pauperis ("IFP") eligibility is "unable to pay such fees or give security therefor." The determination of what constitutes "unable to pay" or unable to "give security therefor, " and, therefore, whether to allow a plaintiff to proceed IFP is left to the sound discretion of the district court based on the information submitted by the plaintiff. Fridman v. City of New York, 195 F.Supp.2d 534, 536 (S.D.N.Y.), aff'd, 52 Fed.Appx. 157 (2d Cir. 2002) (citing Williams v. Estelle, 681 F.2d 946, 947 (5th Cir. 1982); Potnick v. Eastern State Hospital, 701 F.2d 243 (2d Cir.1983)).

In considering an application to waive the filing fee, "a court may consider the resources that the applicant has or "can get" from those who ordinarily provide the applicant with the "necessities of life, " such as "from a spouse, parent, adult sibling or other next friend."" Fridman v. The City of New York, 195 F.Supp. 534, 537(S.D.N.Y. 2002) quoting Williams v. Spencer, 455 F.Supp. 205, 208-09 (D. Md. 1978) (other citations omitted); see Zhu v. Countrywide Realty Co., 148 F.Supp.2d 1154, 1156 (D. Kan. 2001) ("In a number of cases, courts have found that the income and assets of close family members are relevant to a determination of indigency...."); Monti v. McKeon, 600 F.Supp. 112, 114 (D. Conn. 1984) ("in ruling on motions to proceed in forma pauperis, other courts have considered the income of interested persons, such as spouses and parents, in evaluating the funds available to the movant"); Dycus v. Astrue, 2009 WL 47497, *2 (S.D. Ala. Jan. 7, 2009) ("The question... is whether the litigant is unable to pay' the costs, and the answer has consistently depended in part on [the] litigant's actual ability to get funds from a spouse, a parent, an adult sibling, or other next friend.") (citations omitted).

In his Application, Harris declares under the penalty of perjury that he has a part-time job in which he earns approximately $240 a week. Harris owns no property, has no savings and states that he pays his income to his mother for rent and living expenses. Although the Court may consider the assets of a parent in determining whether a litigant is indigent, and despite the fact that Harris' request was submitted on an older version of the Application form which fails to include information concerning monthly expenses, the Court will grant this motion based on Harris' current income and limited personal resources.

II. The Court May Screen This Action

When a plaintiff seeks to file a complaint without prepayment of the filing fee, summonses do not issue so that the Court may conduct a preliminary review of the complaint and determine if it satisfies the substantive requirements of Section 1915. See 28 U.S.C. § 1915. A district court may dismiss a complaint filed in forma pauperis "at any time" if the court determines that the action lacks an arguable basis in law or fact, seeks relief against a defendant who is immune from liability, or fails to state a claim. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (interpreting the former § 1915(d)); 28 U.S.C. § 1915(e)(2)(b). In forma pauperis complaints may be dismissed sua sponte and without notice under Section 1915 if the claims are based on an indisputably meritless legal theory or factual allegations that are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).

Although a pro se plaintiff such as Harris is entitled to a liberal reading of his allegations, even when such allegations are inartfully pled, see Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), Rodi v. New Eng. Sch. of Law, 389 F.3d 5, 13 (1st Cir.2004), to ...


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