McCray v. Wal-Mart Stores, Inc
MEMORANDUM OPINION AND ORDER that the plaintiff's application to proceed without prepaying fees or costs is Denied. Nothing in this ruling precludes the plaintiff from petitioning the Eleventh Circuit Court of Appeals for leave to proceed with his appeal in forma pauperis or from proceeding with the appeal. Signed by Hon. Chief Judge Mark E. Fuller on 05/05/09. (ydw, )
IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION N A O M I McCRAY, P la in tif f , v. W A L -M A R T STORES, INC., D e f e n d a n t. ) ) ) ) ) ) ) ) )
C A S E NO. 1:06-cv-1123-MEF
M E M O R A N D U M OPINION AND ORDER T h is cause is before the Court on the Application to Proceed Without Prepaying F e e s or Costs (Doc. # 77) filed on March 9, 2009, by Naomi McCray ("Plaintiff"). 28 U.S.C. § 1915 ("section 1915") provides this Court with authority for granting p la in tif f s permission to proceed without prepayment of fees and costs. See also Troville v . Venz, 303 F.3d 1256, 1260 (11th Cir. 2002) (affirming the application of section 1915's p ro v is io n s to a non-prisoner's complaint). "In order to authorize a litigant to proceed in fo r m a pauperis, the court must make two determinations: first, whether the litigant is u n a b le to pay the costs of commencing this action; and second, whether the action in f riv o lo u s or malicious." Dycus v. Astrue, No. CA 08-0727-KD-C, 2009 WL 47497, at *1 (S .D . Ala. 2009). An application to proceed in forma pauperis may be denied if the
p la in tif f either fails to satisfy the poverty requirement or if plaintiff's claim is frivolous. Martinez v. Kristi Kleaner's Inc., 364 F.3d 1305, 1306 (11th Cir. 2004); see also Attwood v . Singletary, 105 F.3d 610, 613 (11th Cir. 1997) ( stating that a court `may dismiss the
case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or m a lic io u s ). A . Procedural history O n December 20, 2006, Plaintiff filed a Complaint (Doc. #1) against Wal-Mart S to re s , Inc. ("Defendant"), alleging violations of 42 U.S.C. § 1983, 42 U.S.C. § 1981, and T itle VII. Defendant filed a Motion for Judgment on the Pleadings (Doc. #40) and a M o tio n for Summary Judgment (Doc. #42) on December 1, 2008. On March 17, 2009, this Court adopted the Recommendation of the Magistrate J u d g e (Doc. #67), filed on February 23, 2009, which granted Defendant's Motion for J u d g m e n t on the Pleadings and Motion for Summary Judgment. See Doc. # 72. Several o f Plaintiff's claims were barred by statutes of limitations and she was unable to provide e v id e n c e of a prima facie case for her remaining claims. B . Section 1915 requirements i. Indigent status S e c tio n 1915 ensures that indigent persons will have equal access to the judicial s ys te m . Atwood v. Singletary, 105 F.3d 610, 612 (11th Cir. 1997). A plaintiff need not s h o w that she is "absolutely destitute" to qualify for indigent status under section 1915. Martinez v. Kristi Kleaner's Inc., 364 F.3d 1305, 1307 (11th Cir. 2004). Instead, courts s h o u ld consider the plaintiff's financial situation, including fiscal debts, obligations, d e p e n d a n ts , income, and assets in determining whether to grant or deny an application to
proceed in forma pauperis. Id. In Plaintiff's Application to Proceed in District Court Without Prepaying Fees of C o s ts (Doc. #77), Plaintiff indicated that she is unemployed and takes home $129.00 in u n e m p lo ym e n t every week. She also indicated that she owns a car and a house, together v a lu e d at $33,025.00, has debts totaling $18,240.00, and monthly expenses of $750.34. Plaintiff does not have any dependents. Under the Eleventh Circuit's holding that a p la in tif f need not show that she is "absolutely destitute," this Court is of the opinion that th e plaintiff is unable to pay the necessary fees and qualifies for indigent status. ii. Frivolous action In addition to establishing plaintiff's poverty, the district court must also conduct a f riv o lity screening pursuant to section 1915. Kelley v. Ga. Dep't of Corrs., 145 Fed. A p p x . 329 (11th Cir. 2005). A claim is frivolous if it is based on an indisputably m e ritle s s legal theory. Neitzke v. Williams, 490 U.S. 319, 317 (1989) (applying section 1 9 1 5 ). This circuit has defined a frivolous appeal under section 1915 as being one " `w ith o u t arguable merit.'" Harris v. Menendez, 817 F.2d 737, 739 (11th Cir.1987) (q u o tin g Watson v. Ault, 525 F.2d 886, 892 (5th Cir.1976)). "`Arguable means capable of b e in g convincingly argued.'" Moreland v. Wharton, 899 F.2d 1168, 1170 (11th Cir.1990) (p e r curiam) (quoting Menendez, 817 F.2d at 740 n. 5); see Clark, 915 F.2d at 639 ("A la w s u it [under section 1915(d)] is frivolous if the `plaintiff's realistic chances of ultimate s u c c e s s are slight.'" (quoting Moreland, 899 F.2d at 1170)); Sun v. Forrester, 939 F.2d
924, 925 (11th Cir. 1991), reh'g denied, 503 U.S. 999 (1992); see also Weeks v. Jones, 1 0 0 F.3d 124, 127 (11th Cir. 1996) (stating that "[f]actual allegations are frivolous for p u rp o s e of [28 U.S.C.] § 1915(d) when they are `clearly baseless;' legal theories are f riv o lo u s when they are `indisputably meritless.'") (citations omitted) H e re , several of Plaintiff's claims were barred by statutes of limitations. On all her re m a in in g claims, Plaintiff was unable to provide evidence of a prima facie case. Applying the foregoing standard, Plaintiff's appeal is without a legal or factual basis and, a s a result, the Court is compelled to find that it is frivolous. C . Conclusion A c c o rd in g ly, it is ORDERED that the Plaintiff's Application to Proceed Without P re p a yin g Fees or Costs is DENIED. Nothing in this ruling precludes the Plaintiff from p e titio n in g the Eleventh Circuit Court of Appeals for leave to proceed with his appeal in fo r m a pauperis or from proceeding with the appeal. As the United States Supreme Court h a s explained [ I]f from the face of the papers he has filed, it is apparent that the applicant will p re s e n t issues for review not clearly frivolous, the Court of Appeals should then g ra n t leave to appeal in forma pauperis, appoint counsel to represent the appellant a n d proceed to consideration of the appeal on the merits in the same manner that it c o n s id e rs paid appeals. Coppedge v. U.S., 369 U.S. 438, 446 (1962). DONE this the 5th day of May, 2009.
/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE
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