Gaston v. Birch Family Services

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DENISE GASTON,
Plaintiff,
v.
BIRCH FAMILY SERVICES,
Defendant.
MEMORANDUM AND ORDER
26-cv-02259 (LDH) (LKE)
LASHANN DEARCY HALL, United States District Judge:
Denise Gaston (“Plaintiff”), proceeding pro se, brings this action against Birch Family
Services (“Defendant”) alleging employment discrimination. For the reasons discussed below,
Plaintiff’s request to proceed in forma pauperis (“IFP”) is denied. Plaintiff is granted fourteen
(14) days from the issuance of this memorandum to pay the $405.00 filing fee.
DISCUSSION
A plaintiff seeking to proceed IFP must submit an affidavit stating “that the person is
unable to pay” filing fees “or give security therefor” and must also include “a statement of all
assets” the person possesses. 28 U.S.C. § 1915(a)(1). “A litigant need not be ‘absolutely destitute’
to qualify for in forma pauperis status but need demonstrate only that they ‘cannot because of their
poverty pay or give security for the costs and still be able to provide themselves and dependents
with the necessities of life.’” Rosa v. Doe, 86 F.4th 1001, 1005 (2d Cir. 2023) (quoting Adkins v.
E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)); Gil v. JP Morgan Chase Bank NA,
No. 23-CV-02268, 2023 WL 8567478, at *3 (E.D.N.Y. Dec. 11, 2023). Section 1915 authorizes
a court to dismiss a case brought by a plaintiff requesting to proceed IFP if the “allegation of
poverty is untrue,” 28 U.S.C. § 1915(e)(2)(A), and courts in this District treat that dismissal
provision as applicable when a litigant’s statement of assets fails to establish the level of poverty
Case 1:26-cv-02259-LDH-LKE Document 4 Filed 10/13/26 Page 1 of 2 PageID #:
<pageID>

2
required under the IFP statute. See, e.g., Kane v. Garland, No. 25-CV-6680, 2026 WL 396878, at
*1 (E.D.N.Y. Feb. 12, 2026); Francis v. New York City Dept. of Corrections, No. 25-CV-02301,
2025 WL 3090625, at *1 (E.D.N.Y. Nov. 5, 2025); Levy v. Exodus Movement Inc., No. 25-CV-
2975, 2025 WL 1652146, at *1 (E.D.N.Y. June 10, 2025). The question of whether a plaintiff
qualifies for IFP status is within the discretion of the district court. Grant v. 115th Precinct, No.
24-CV-4183, 2024 WL 3252513, at *1 (E.D.N.Y. July 1, 2024).
Here, the financial declaration form Plaintiff submitted does not satisfy the Court that she
is unable to pay the Court’s filing fee to commence this action. (Mot. for Leave to Proceed in
Forma Pauperis, ECF No. 2.) Plaintiff states that she is currently employed and earns gross
monthly pay or wages of $8,596.60, and her take home pay is $5,000.00 per month. (Id. at 1.)
Although she states that she has only $150.00.00 in her checking or savings account and has
routine monthly expenses, (see id. at 2), her declaration establishes that she has sufficient
resources to pay the $405.00 filing fee to commence this action.
CONCLUSION
Accordingly, Plaintiff’s request to proceed in forma pauperis (“IFP”) is DENIED.
Plaintiff is granted fourteen (14) days from the issuance of this memorandum to pay the $405.00
filing fee.
SO ORDERED.
Dated: Brooklyn, New York /s/ LDH
October 13, 2026 LASHANN DEARCY HALL
United States District Judge
Case 1:26-cv-02259-LDH-LKE Document 4 Filed 10/13/26 Page 2 of 2 PageID #:
<pageID>