Hurley v. Ithaca City Sch. Dist.

• Decision Date: 22 April 2020
• Docket Number: 3:20-CV-0328 (DNH/ML)
• Parties: MICHAEL A. HURLEY, Plaintiff, v. ITHACA CITY SCHOOL DISTRICT - BOARD OF EDUCATION; and DR. LUVELLE BROWN, Superintendent of Schools, ICSDBOE, Defendants.
• Court: U.S. District Court — Northern District of New York

MICHAEL A. HURLEY, Plaintiff, v. ITHACA CITY SCHOOL DISTRICT - BOARD OF EDUCATION;and DR. LUVELLE BROWN, Superintendent of Schools, ICSDBOE, Defendants.

3:20-CV-0328 (DNH/ML)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

April 22, 2020

APPEARANCES:

MICHAEL A. HURLEY

Plaintiff, Pro Se

3834 Manning Road

Watkins Glen, New York 14891

BOND, SCHOENECK AND KING, PLLC

Counsel for Defendants

One Lincoln Center

Syracuse, New York 13202

OF COUNSEL:

KATE I. REID, ESQ.

MIROSLAV LOVRIC, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

The Clerk has sent this pro se complaint together with an application to proceed in forma pauperis filed by Michael A. Hurley ("Plaintiff") to the Court for review. (Dkt. Nos. 1 and 2.) For the reasons discussed below, I deny without prejudice Plaintiff's in forma pauperis application (Dkt. No. 2), and recommend that Plaintiff's Complaint (Dkt. No. 1) be dismissed in its entirety with leave to amend.

I. PLAINTIFF'S ALLEGATIONS

Construed as liberally¹ as possible, Plaintiff's Complaint alleges that his civil rights were violated by Defendants Ithaca City School District Board of Education and Dr. Luvelle Brown, Superintendent of Schools, ICSDBOE (collectively "Defendants"). (See generally Dkt. No. 1.) More specifically, Plaintiff alleges that on June 1, 2018, Defendants committed an "unfair labor practice" when they demoted him from his position as mechanic to bus driver, in violation of the collective bargaining agreement between Ithaca City School District employees and the Ithaca City School District. (Id. at 3.) In addition, Plaintiff alleges that on November 29, 2019, Defendants retaliated against him in violation of New York Civil Service Law 75-b(3) and the Federal Whistleblower Protection Act of 1989, 5 U.S.C. 2302 et seq., by taking "prohibited [d]isciplinary action" against him after he disclosed an "[i]llegal [a]ct that [a]ffected [p]ublic [h]ealth [and] safety." (Id. at 4.) Finally, Plaintiff alleges that Defendants retaliated against him and acted with malice by terminating his employment. (Id.)

Based on these factual allegations, Plaintiff asserts the following three claims: (1) a claim that he was terminated as a mechanic and unfairly demoted to the position of bus driver in violation of New York State Labor Law; (2) a claim of unfair labor practice in retaliation for making a disclosure in violation of New York Labor Law 75-b; and (3) retaliatory wrongful termination in violation of New York Civil Service Law 75-b(3). (Dkt. No. 1 at 3.)

For a more complete statement of Plaintiff's claims, refer to the Complaint. (Dkt. No. 1.)

Plaintiff also filed an application for leave to proceed in forma pauperis. (Dkt. No. 2.)

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 $400, 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).

The decision of whether to grant an application to proceed IFP rests within the sound discretion of the court. Anderson v. Coughlin, 700 F.2d 37, 42 (2d Cir. 1983). The court must be satisfied "that the person is unable to pay such fees or give security therefor" prior to granting IFP status. 28 U.S.C. § 1915(a)(1). To make this threshold showing, a plaintiff must demonstrate "that paying such fees would constitute a serious hardship on the plaintiff, not that such payment would render plaintiff destitute." Fiebelkorn v. United States, 77 Fed. Cl. 59, 62 (Fed. Cl. 2007) (citing Adkins v. E.l. DuPont de Nemours & Co., 335 U.S. 331, 339 [1948]); see also Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d Cir. 1983) ("Section 1915[a] does not require a litigant to demonstrate absolute destitution[.]"); accord, Lee v. McDonald's Corp., 231 F.3d 456, 459 (8th Cir. 2000). As the Second Circuit has noted, "no party must be made to choose between abandoning a potential meritorious claim or foregoing the necessities of life." Potnick, 701 F.2d at 244 (citing Adkins, 335 U.S. at 339).

In support of an IFP application, 28 U.S.C. § 1915 requires that a plaintiff submit an affidavit reflecting his assets. 28 U.S.C. § 1915(a)(1).

Here, Plaintiff's IFP application states that he earns $467.00 per week in wages and that his spouse earns $250.00 bi-weekly, which equates to approximately $30,784.00 in combined annual income. (Dkt. No. 2 at ¶ 2.) The United States Department of Health and Human Services publishes yearly Poverty Guidelines. Those guidelines reflect that, for 2020, the poverty threshold for a household of two³ is $17,240.00. See United States Dep't of Health & Human Servs., https://aspe.hhs.gov/poverty-guidelines (last visited April 22, 2020).⁴

"Plaintiff's application does not disclose any extraordinary or unusual expenses, debts or financial obligations, other than ordinary cost-of-living expenses, such as property taxes, utilities, insurance, and food." David v. United States Envtl. Prot. Agency, 19-CV-0064, 2019 WL 1004706, at *2 (N.D.N.Y. Jan. 29, 2019) (Peebles, M.J.). In addition, it is unclear whether Plaintiff owns real estate since he lists property taxes as a monthly expense (Dkt. No. 2 at ¶ 6), but lists only two vehicles in response to the question directing him to identify "[a]ny automobile, real estate, stock, . . . or other financial instrument or thing of value" that he owns (Dkt. No. 2 at ¶ 5). It is also worth noting that Plaintiff indicates that he has $1,117.00 in cash or a checking or savings account. (Dkt. No. 2 at ¶ 4.)

In this instance, despite some unanswered questions regarding Plaintiff's finances, I find that he possesses sufficient funds to pay the $400.00 filing fee to commence an action without "foregoing the necessities of life." Potnick, 701 F.2d at 244 (citing Adkins, 335 U.S. 339).

Accordingly, I deny Plaintiff's motion to proceed in this case IFP. To the extent that Plaintiff may wish to renew his request to proceed IFP, and given the Court's unanswered questions about his financial situation, any request to proceed without the prepayment of fees must include a fully completed long form in forma pauperis application (AO 239).

III. LEGAL STANDARD FOR INITIAL REVIEW OF COMPLAINT

Ordinarily, the finding that Plaintiff does not qualify for IFP status would end the Court's discussion, and Plaintiff, in light of his pro se status, would likely be afforded an opportunity to either prepay the full filing fee, or submit a new, completed, and certified application for IFP. Because, however, as is discussed more completely below, I find that Plaintiff's Complaint fails to allege facts plausibly suggesting subject matter jurisdiction, 28 U.S.C. § 1915 requires that the court dismiss the action. 28 U.S.C. § 1915(e); see Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88-89 (1988) (holding that subject matter jurisdiction is a "threshold question that must be resolved . . . before proceeding to the merits."); Humphrey v. Syracuse Police Dep't, 758 F. App'x 205, 205-06 (2d Cir. 2019) (citing United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014)) ("[b]efore deciding any case on the merits, a district court must determine that it has subject matter jurisdiction over the matter."); Koziel v. City of Yonkers, 352 F. App'x 470, 471 (2d Cir. 2009) (summary order) (affirming sua sponte dismissal of complaint on initial review for lack of subject matter); Talley v. LoanCare Serv., Div. of FNF, 15-CV-5017, 2018 WL 4185705, at *5 (E.D.N.Y. Aug. 31, 2018) (dismissing on initial review, action challenging state court mortgage foreclosure judgment because the court lacked jurisdiction); Eckert v. Schroeder, Joseph & Assoc., 364 F. Supp. 2d 326, 327 (W.D.N.Y. 2005) (citing Hughes v. Patrolmen's Benevolent Ass'n of the City of N.Y., Inc., 850 F.2d 876, 881 (2d Cir. 1988), cert. denied, 488U.S. 967 (1988)) ("[a] court shall, sua sponte, dismiss a complaint for lack of subject matter jurisdiction as soon as it is apparent that it lacks subject matter jurisdiction.").

"Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2).

In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The requirement that a plaintiff "show" that he or she is entitled to relief means that a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 [2007]). "Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).

"In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). Howe...