Fetzner v. Town of Gates et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SCOTT FETZNER,
DECISION AND ORDER
Plaintiff,
v. 	6:23-CV-06229 MAV CDH
TOWN OF GATES, et al.,
Defendants.
INTRODUCTION
Plaintiff Scott Fetzner (“Plaintiff”) asserts claims under 42 U.S.C. § 1983 and
New York state law in connection with an incident on April 19, 2022, involving the Town
of Gates Police Department and the Monroe County Sheriff’s Office. (Dkt. 1; Dkt. 16).
Following the withdrawal of his counsel (see Dkt. 27; Dkt. 32), Plaintiff has filed a
motion to proceed in forma pauperis (Dkt. 36) and a motion for appointment of counsel
(Dkt. 37). For the reasons set forth below, Plaintiff’s motions are denied without
prejudice.
BACKGROUND
This case has been referred to the undersigned for all pretrial matters excluding
dispositive motions. (Dkt. 4; Dkt. 26).
On April 24, 2025, the Court entered an Order granting Plaintiff’s attorneys’
motion to withdraw. (Dkt. 32). The Court directed Plaintiff’s attorneys to serve Plaintiff
with a copy of the Order and directed Plaintiff to advise the Court in writing within 30
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days of being served a copy of the Order if he will seek to obtain new counsel or if he will
proceed in this case pro se. (Id. at 3).
Upon not receiving any communication, in writing or otherwise, from Plaintiff
regarding this case, the Court held a status conference with the parties on June 25,
2025, to address Plaintiff’s representational status going forward. (Dkt. 35). During the
conference, Plaintiff informed the Court that he was seeking but had not yet obtained
new counsel. The Court directed Plaintiff to file a motion to proceed in forma pauperis
and a motion to appoint counsel by September 23, 2025, or to otherwise advise the Court
by that date of his representational status. (Id.). On July 22, 2025, Plaintiff submitted
applications to proceed in forma pauperis and to be appointed counsel. (Dkt. 36; Dkt.
37). Defendants have not responded to either motion.
DISCUSSION
I. 	Motion to Proceed In Forma Pauperis
Under 28 U.S.C. § 1915(a)(1), an individual is permitted “to litigate a federal
action in forma pauperis if the individual files an affidavit stating, among other things,
that he or she is unable to prepay fees ‘or give security therefor.’” Coleman v. Tollefson,
575 U.S. 532, 535 (2015). “Section 1915(a) does not require a litigant to demonstrate
absolute destitution.” Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d Cir. 1983).
“Rather, ‘an affidavit [to proceed in forma pauperis] is sufficient [if it states] that one
cannot because of his poverty pay or give security for the costs [inherent in litigation]
and still be able to provide himself and dependents with the necessities of life.’”
Harrington v. Drown, No. 21-CV-6634MWP, 2024 WL 1908879, at *1 (W.D.N.Y. Apr.
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30, 2024) (alterations in original and quoting Adkins v. E.I. DuPont de Nemours & Co.,
335 U.S. 331, 339 (1948)).
“The decision of whether to grant a request to proceed in forma pauperis is left to
the District Court’s discretion under 28 U.S.C. § 1915.” Hines v. U.S., No. 6:19-CV-
06837(MAT), 2020 WL 570605, at *1 (W.D.N.Y. Feb. 5, 2020) (quotation and alteration
omitted). “In assessing an application to proceed in forma pauperis, 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. City of N.Y., 195 F. Supp. 2d 534, 537 (S.D.N.Y. 2002)
(quotations omitted). “When an applicant fails to explain how he supports himself,
courts generally regard his application as incomplete and insufficient to establish an
entitlement to in forma pauperis status.” Dan M. v. Kijakazi, No. 3:22-CV-00664-SRU,
2022 WL 2069112, at *2 (D. Conn. May 19, 2022).
Here, Plaintiff’s affirmation supporting his motion to proceed in forma pauperis
provides the following information: (1) he is presently unemployed; (2) his only source
of income is $181 per month in unspecified government benefits; (3) he has zero dollars
on hand or in a checking or savings account; (4) he owns no cars or real estate or other
valuable property; (5) he pays zero dollars in monthly household expenses, including for
rent, food, and utilities; and (6) he is the only person in his household. (Dkt. 36 at 1-2).
This information is not sufficient for the Court to determine whether Plaintiff is
entitled to proceed in forma pauperis. Significantly, the Court cannot understand how
Plaintiff survives on only $181 per month without any additional financial support.
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Similarly, the Court cannot understand how Plaintiff pays zero dollars in monthly
household expenses while being the sole member of his household and receiving no
support from any other person. Given that the Court has recently mailed docket entries
to Plaintiff at a residential address, (see Dkt. 34; Dkt. 35), Plaintiff’s application raises
more questions than answers regarding his financial circumstances.1 See Stanley v.
Comm’r of Soc. Sec. Admin., No. 24-CV-4665, 2024 WL 3706846, at *1 (E.D.N.Y. July
23, 2024) (denying motion to proceed in forma pauperis because “[a]lthough Plaintiff
reports receiving public assistance, it also appears she is being supported by another
given that she has included no expenses associated with her reported residence or
utilities”) (citation omitted); Davis v. NYS Dep’t of Lab., No. 21-CV-690 (JLS), 2021 WL
9455716, at *2 (W.D.N.Y. June 28, 2021) (“Davis’s application [to proceed in forma
pauperis] does not list any expenses. If that is the case, she does not explain how she
subsists—such as, for example, how she obtains housing and food. Her application,
therefore, is incomplete and prevents the Court from assessing her ability to pay.”)
(citation omitted).
Because Plaintiff’s application does not adequately explain how he supports
himself, the Court finds that Plaintiff’s application is incomplete. Plaintiff’s motion to
proceed in forma pauperis (Dkt. 36) is therefore denied without prejudice. If Plaintiff
submits a renewed application, it must fully explain how he supports himself, including
whether he relies on any other person for financial support. Plaintiff must submit this
1 	The Court also notes that on October 1, 2025, subsequent to Plaintiff’s submission
of his application to proceed in forma pauperis, Plaintiff filed a notice stating that his
new mailing address is his parents’ home address. (Dkt. 38).
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application, along with a renewed application for appointment of counsel, by no later
than 30 days from the entry of this Decision and Order for the purposes of determining
whether appointment of counsel is warranted at this time.
II. 	Motion for Appointment of Counsel
Unlike in a criminal matter, there is no right to appointed counsel in civil cases.
Under 28 U.S.C. § 1915(e)(1), the Court may, at its discretion, appoint counsel for a
litigant in a civil case, but “the statute only allows appointment where a litigant is
indigent.” Sears, Roebuck & Co. v. Charles W. Sears Real Est., Inc., 865 F.2d 22, 23 (2d
Cir. 1988); see also Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir.
1994) (noting that before a court considers the relevant factors on a motion to appoint
counsel, “it must first ascertain whether the litigant is able to afford or otherwise obtain
counsel”).
In this case, the only evidence of Plaintiff’s indigence before the Court is his
application to proceed in forma pauperis. As discussed above, Plaintiff’s application to
proceed in forma pauperis is incomplete and does not provide sufficient information for
the Court to determine that Plaintiff is indigent. Thus, the Court cannot conclude that
Plaintiff satisfies the threshold requirement for appointment of counsel under 28 U.S.C.
§ 1915(e)(1). See Sears, Roebuck and Co., 865 F.2d at 23 (finding district court did not
abuse its discretion in denying plaintiff’s motion to appoint counsel where plaintiff was
not indigent for purposes of proceeding in forma pauperis); Flint v. Jun, No. 1:19-CV-
00416 EAW, 2019 WL 11838761, at *9 (W.D.N.Y. Oct. 22, 2019) (denying plaintiff’s
motion to appoint counsel because his application to proceed in forma pauperis did not
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demonstrate he was indigent); Cochran v. Town of Colonie, No. 1:04-CV-0666-FJS-GJD,
2006 WL 8451979, at *1 (N.D.N.Y. Apr. 6, 2006) (denying plaintiff’s motion to appoint
counsel because his application to proceed in forma pauperis was incomplete and the
court had not been presented with any other evidence of plaintiff’s indigence).
Plaintiff’s motion for appointment of counsel (Dkt. 37) is therefore denied without
prejudice. Plaintiff may submit a renewed application for appointment of counsel,
accompanied by a complete application to proceed in forma pauperis, by no later than
30 days from the entry of this Decision and Order.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion to proceed in forma pauperis (Dkt.
36) and motion for appointment of counsel (Dkt. 37) are denied without prejudice.
Plaintiff may submit a complete application to proceed in forma pauperis, as explained
herein, and a renewed application for appointment of counsel by no later than 30 days
from the entry of this Decision and Order. If Plaintiff fails to submit these applications
by that date, then it will be his responsibility to obtain counsel or move forward with
this lawsuit pro se.
SO ORDERED.
COLLEEN D. HOLLAND
United States Magistrate Judge
Dated: October 8, 2025
Rochester, New York
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