Opinion
2:15-cv-5573 (DRH)(SIL)
08-16-2018
LUCYNA KOBOS Plaintiff, v. TARGET CORPORATION and AMY MARTINEZ, Defendants.
APPEARANCES LAW OFFICES OF JOEL M. GLUCK Attorney for Plaintiff 305 Broadway Suite 1427 New York, NY 10007 By: Joel M. Gluck, Esq. SEYFARTH SHAW LLP Attorneys for Defendant Target 620 Eighth Ave. New York, NY 10018 By: Scott Roblan Rabe, Esq. Alnisa Shakirah Bell, Esq.
MEMORANDUM AND ORDER
APPEARANCES
LAW OFFICES OF JOEL M. GLUCK
Attorney for Plaintiff
305 Broadway Suite 1427
New York, NY 10007
By: Joel M. Gluck, Esq. SEYFARTH SHAW LLP
Attorneys for Defendant Target
620 Eighth Ave.
New York, NY 10018
By: Scott Roblan Rabe, Esq.
Alnisa Shakirah Bell, Esq. HURLEY, Senior District Judge :
By Order dated June 12, 2018, the Court granted Target Corporation's motion to dismiss and Plaintiff Lucyna Kobos ("Plaintiff") consented to dismiss the action against Defendant Martinez on the basis of insufficient service of process. On July 12, 2018, Plaintiff filed a Notice of Appeal. On August 15, 2018—over a month later—Plaintiff requested permission to proceed in forma pauperis on her appeal to the Second Circuit. For the reasons that follow, the application is denied.
DISCUSSION
I. Standard of Review
A motion to proceed in forma pauperis on appeal must be made in the first instance to the district court. See Fed. R. App. P. 24(a). An appeal may not be taken in forma pauperis if the district court certifies that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(4)(B). The Second Circuit has instructed:
Generally an application for leave to appeal in forma pauperis will have sufficient substance to warrant consideration only if, in addition to an adequate showing of indigence and of citizenship, it identifies with reasonable particularity the claimed errors which will be the basis for the appeal. If these requirements are satisfied, and if on consideration the trial judge is conscientiously convinced that there is no substantial question for review and that an appeal will be futile, or if he is convinced that there is no reasonable basis for the claims of alleged error, it is the duty of the trial judge, albeit not a pleasant duty, to certify that the appeal is not taken in good faith.United States v. Farley, 238 F.2d 575, 576 (2d Cir. 1956) (internal citations and quotation marks omitted). "'This threshold level for permitting persons to proceed in forma pauperis is not very great and doubts about the substantiality of the issues presented should normally be resolved in the applicant's favor.'" Bishop v. Henry Modell & Co., 2010 WL 1790385, at *1 (S.D.N.Y. May 4, 2010) (quoting Miranda v. United States, 458 F.2d 1179, 1181 (2d Cir. 1972)). "Nevertheless, 'good faith is judged by an objective standard, and if an appeal is frivolous it is not taken in good faith.'" Bishop, 2010 WL 1790385, at *1 (quoting Gomez v. United States, 371 F. Supp. 1178, 1179 (S.D.N.Y. 1974)).
II. Plaintiff's Request to Appeal In Forma Pauperis is Denied
Here, Plaintiff's application to proceed in forma pauperis does not include any of "the claimed errors which will be the basis for the appeal." Farley, 238 F.2d at 576. Rather, Plaintiff simply states that she appeals "from the Order and Decision dated June 12, 2018 dismissing the case as to Defendant Target Corporation . . . ." (Notice of Appeal [ECF. No. 34] at 1 (July 12, 2018).) Given that Plaintiff has failed to present any ground for appeal there is no basis for the Court to grant in forma pauperis status for appeal purposes, however, the Court has nonetheless reviewed the record. After careful review, and for the reasons stated in the Court's June 12, 2018 Order, the Court finds that Plaintiff's claims lacked merit and were properly dismissed as she was not even able to establish the first element of a prima facie case. As such, there is no substantial question for review.
The Court certifies that any appeal would not be taken in good faith and thus the request to proceed in forma pauperis on appeal is denied. Further requests to proceed in forma pauperis should be directed to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
SO ORDERED.
/s/ Denis R. Hurley
Denis R. Hurley,
United States District Judge Dated: Central Islip, N.Y.
August 16, 2018