OBIANYO v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES et al, No. 1:2022cv04910 - Document 5 (D.N.J. 2022)
Court Description: OPINION AND ORDER Denying 4 Plaintiff's Application to Proceed IFP without prejudice; granting Plaintiff leave to refile an IFP application within 30 days of the date of this Order; Plaintiff may pay the filing fee within 30 days of the date of this Order; if Plaintiff fails to submit a second IFP application or fails to pay the filing fee, the Court will issue an Order dismissing this case without prejudice. Signed by Judge Noel L. Hillman on 11/30/2022. (alb, n.m.)
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OBIANYO v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES et al Doc. 5 Case 1:22-cv-04910-NLH Document 5 Filed 11/30/22 Page 1 of 4 PageID: 18 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY UCHENNA N. OBIANYO, Civ. No. 1:22-cv-04910-NLH Plaintiff, OPINION AND ORDER v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, DEPARTMENT OF HOMELAND SECURITY, Defendants. APPEARANCES: UCHENNA N. OBIANYO 1175 MARLKRESS ROAD CHERRY HILL, NJ 08034 Plaintiff appearing pro se HILLMAN, District Judge WHEREAS, this Court received Uchenna N. Obiyano’s (“Plaintiff’s”) Complaint on July 28, 2022 (ECF No. 1); and WHEREAS, Plaintiff filed an application to proceed in forma pauperis (“IFP”) on August 11, 2022 (ECF No. 4); and WHEREAS, pursuant to 28 U.S.C. § 1915(a)(1), a court may allow a litigant to proceed without prepayment of fees if he submits a proper IFP application; and WHEREAS, although Section 1915 refers to “prisoners,” Dockets.Justia.com Case 1:22-cv-04910-NLH Document 5 Filed 11/30/22 Page 2 of 4 PageID: 19 Federal courts apply Section 1915 to non-prisoner IFP applications; see Hickson v. Mauro, No. 11-16304, 2011 WL 6001088, *1 (D.N.J. Nov. 30, 2011) (citing Lister v. Dept. of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (“Section 1915(a) applies to all persons applying for IFP status, and not just to prisoners.”); and WHEREAS, Section 1915(a) refers to a “statement of all assets such prisoner possesses,” this section has been applied by courts to the applications of non-prisoners’ assets statements; El Ameen Bey v. Stumpf, 825 F. Supp. 2d 537, 551 n.7 (D.N.J. 2011) (citing Douris v. Middletown Twp., 293 Fed. App’x 130 (3d Cir. 2008); and WHEREAS, the decision to grant or deny an IFP application is based solely on the economic eligibility of the petitioner; Peterson v. Weiss, No. 12-5431, 2012 WL 6042795 at *1 (D.N.J. Dec. 3, 2012) (citing Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976)); and WHEREAS, Plaintiff has filed an IFP application and signed the affidavit under the penalty of perjury regarding his monthly expenses and income; and WHEREAS, although Plaintiff indicates he has very limited income, he also reports no expenses and further indicates several unexplained sources of future income that appear to or may be sufficient to pay the filing fee, more specifically: 2 Case 1:22-cv-04910-NLH Document 5 Filed 11/30/22 Page 3 of 4 PageID: 20 $10,000 due to him from the Internal Revenue Service; an unspecified amount from a class action settlement; and otherwise unspecified “settlement from debt”, (ECF No. 4 at para. 6 & 9); and WHEREAS, leave to proceed pursuant to IFP is based on a showing of indigence; Gray v. Martinez, 352 F. App’x 656, 658 (3d Cir. 2009); and WHEREAS, without further explanation the otherwise vague description of Plaintiff’s additional sources of income preclude the Court from finding that Plaintiff is indigent; and WHEREAS, for a Court to grant IFP status to a litigant, the litigant “must establish that he is unable to pay the costs of his suit”; Walker v. People Express Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989) and here Plaintiff has failed to do so; and WHEREAS, a Plaintiff is not entitled to relief merely because he brings an action pro se and has expenses; Greene v. Recovery Ctrs. of Am., No. 21-01176, 2021 U.S. Dist. LEXIS 24398 at *2 (D.N.J. Feb. 9, 2021); Accordingly, IT IS on this __30th _ day of November, 2022 ORDERED that Plaintiff’s IFP application (ECF No. 4) be, and the same hereby is, DENIED WITHOUT PREJUDICE; and it is further 3 Case 1:22-cv-04910-NLH Document 5 Filed 11/30/22 Page 4 of 4 PageID: 21 ORDERED that Plaintiff is GRANTED LEAVE to refile his IFP application within 30 days of the date of this Order further explaining his sources of income and why those funds are not available to pay the filing fee in this matter; and it is further ORDERED that, in the alternative, Plaintiff may pay the filing fee within 30 days of the date of this Order; and it is further ORDERED that in the event that Plaintiff fails to submit a second IFP application or fails to pay the filing fee, the Court will issue an Order dismissing this case without prejudice; and it is further ORDERED that the Clerk shall mail of a copy of this Order to Plaintiff by regular mail to the address listed on the docket. _s/Noel L. Hillman NOEL L. HILLMAN, U.S.D.J. At Camden, New Jersey 4
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