Coggins v. Town of Jackson's Gap (MAG+)

Filing 12

ORDER DENYING plaintiff's 2 MOTION for Leave to Proceed in forma pauperis ; directing plaintiff to pay the filing fee of $350 to the Clerk on or before 5/31/2012, as further set out in order. Signed by Honorable Judge Terry F. Moorer on 5/17/12. Furnished to cashier.(djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
GENE COGGINS,
Plaintiff,
v.
TOWN OF JACKSON’S GAP
Defendant.

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CIV. ACT. NO. 3:12-cv-205-MHT
(wo)

ORDER
On March 6, 2012 Gene Coggins (“Plaintiff” or “Coggins”) filed a complaint against
the Town of Jackson’s Gap concurrently with a Motion for Leave to Proceed In Forma
Pauperis. (Doc. 1 & 2). Pursuant to 28 U.S.C. § 636(b)(1) this case was referred to the
undersigned United States Magistrate Judge for review and submission of a report with
recommended findings of fact and conclusions of law (Doc. 3, filed 03/12/12).1 On March
15, 2012, the Court ordered Coggins to file an amended motion to proceed in forma pauperis,
including completion of the “application to proceed in District Court without prepay fees or
costs (Long Form).” (Doc. 4). Coggins filed his amended motion on March 20, 2012. (Doc.
6). On April 30, 2012, after having to reschedule due to Coggins’ health, the Court held a
hearing on Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 2).

1

Plaintiff has previously sued the undersigned Magistrate Judge, along with every
other judicial officer in this court who has taken action in any of his prior lawsuits. Pursuant to
the ruling of this court in Coggins v. Town of Jackson’s Gap, 2008 WL 2074429 (M.D. Ala.
2008) (unpublished), which the undersigned hereby adopts, the Magistrate Judge concludes that
he is not disqualified from proceeding in this case by reason of Coggins’ prior lawsuits.

All litigants, pro se or not, must comply with the Federal Rules of Civil Procedure.
While the court is required to liberally construe a pro se litigant’s pleadings, the court does
not have “license to serve as de facto counsel for a party. . .or to rewrite an otherwise
deficient pleading in order to sustain an action.” GJR Investments, Inc. v. County of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted). While 28 U.S.C.
§ 1915 authorizes suits by litigants without prepayment of fees, it does not authorize abuse
of the legal system.
The pauper’s affidavit should not be a broad highway into the federal courts.
Indigence does not create a constitutional right to the expenditure of public
funds and valuable time of the courts in order to prosecute an action which is
totally without merit. Clearly, these considerations counsel that the district
court must have wide discretion in denying a motion to proceed as a pauper
when the complaint is frivolous.
Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984) (citing Jones v. Ault, 67 F.R.D.
124, 127 (S.D.Ga. 1974), aff’d without opinion, 516 F.2d (5th Cir. 1975); and Collins v.
Cundy, 603 F.2d 825, 828 (10th Cir. 1979)).
“Section 1915 mandates a two-stage procedure for processing a prisoner's pro se civil
rights complaint filed in forma pauperis.” Procup v. Strickland, 760 F.2d 1107, 1114 (11th
Cir. 1985) (citing Green v. City of Montezuma, 650 F.2d 648, 650 (5th Cir. 1981); Woodall
v. Foti, 648 F.2d 268, 271 (5th Cir.1981); Watson v. Ault, 525 F.2d 886, 891 (5th Cir.1976).
First, the district court should determine “whether the plaintiff is unable to prepay costs and
fees and therefore a pauper under the statute.” Id. (citing 28 U.S.C. § 1915(a)). Second,
once leave has been granted, the court may dismiss a case by a plaintiff proceeding in forma
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pauperis at any time if it determines that the complaint is frivolous, malicious, or fails to state
a claim on which relief may be granted. Id.; see 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
In the court’s determination of the plaintiff’s ability to prepay costs and fees, the
potential plaintiff must file an affidavit indicating that he or she is unable to pay such fees
or give such security. Stewart v. Spirit Airlines/ALPA, system Bd. Of Adjustment, 2012 WL
1069177, at *1 (S.D.Fla) (citing 28 U.S.C. § 1915(a)(1)). A court has “wide discretion” in
determining whether to grant or deny a motion pursuant to § 1915(a). Id. See also Martinez
v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 (11th Cir.2004) (citing 28 U.S.C. § 1915). This
statute “is designed to ensure that indigent litigants have meaningful access to the federal
courts.” Neitzke v. Willliams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)
(citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342-343, 69 S.Ct. 85, 90-91,
93 L.Ed. 43 (1948)). The Fifth Circuit explained;
Under subsection (a), the commencement or filing of the suit depends solely
on whether the affiant is economically eligible. The only determination to be
made by the Court under § 1915(a), therefore, is whether the statements in the
affidavit satisfy the requirements of poverty.
Watson v. Ault, 525 F.2d 886, 891 (5th Cir.1976) (citing Campbell v. Beto, 460 F.2d 765, 768
(5th Cir. 1972)). The statute does not grant parties an “absolute right to proceed in civil
actions without payment of costs.” Levy v. Federated Dep't Stores, 607 F.Supp. 32, 33
(S.D.Fla.1984).
Section 1915(a) provides that “any court of the United States may authorize the
commencement, prosecution or defense of any suit, action or proceeding, civil or criminal,
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or appeal therein, without prepayment of fees or security therefor, by a person who submits
an affidavit that includes a statement of all assets such prisoner2 possesses that the person is
unable to pay such fees or give security therefor.” See 28 U.S.C. § 1915(a)(1). While income
that falls below the poverty level is a good indicator that the party may not be able to pay
such a fee, there is no requirement in the code for the person to show that they are below the
national poverty level in order to satisfy the requirement of poverty and thus be granted in
forma pauperis.
An affidavit addressing the petitioner’s financial status should be accepted by the
court, absent a serious misrepresentation, and need not show that the litigant is “absolutely
destitute” to qualify for indigent status under § 1915. Adkins v. E.I. DuPont de Nemours &
Co., 335 U.S. at 338-40, 69 S.Ct. at 88. The affidavit shall be sufficient if it represents that
the litigant, because of his or her poverty, is unable to pay for the court fees and costs, and
to support and provide necessities for himself and his dependents. Id. at 339, 69 S.Ct. at 89.
In other words, the statute is not to be construed such that potential litigants are forced to
become public charges or abandon their claims because of the filing fee requirements. Id. at
339-40, 69 S.Ct. at 89. “[W]here the in forma pauperis affidavit is sufficient on its face to
demonstrate economic eligibility, the court should first docket the case and then proceed to
the question ... of whether the asserted claim is frivolous or malicious.” Watson, 525 F.2d at

2

While the statute uses the word “prisoner” the affidavit requirement applies to
everyone requesting leave to proceed IFP. Haynes v. Scott, 116 F.3d 137, 140 (5th
Cir.1997), Floyd v. United States Postal Serv., 105 F.3d 274, 275 (6th Cir.1997).
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891. At this point, the district court may employ flexibility and creativity in exercising its
discretion under § 1915(d). Id. The court may deny a motion to proceed in forma pauperis
if it finds that the action is not taken in good faith. See 28 U.S.C. § 1915(a)(3).
In making its determination, the district court must provide a sufficient explanation
for its determination on pauperis status to allow for meaningful appellate review. O'Neal v.
United States, 411 F.2d 131, 138 (5th Cir.1969). The court's consideration of a party's ability
to pay for costs and attorney's fees is not limited by the party's application for leave to
proceed in forma pauperis, and that the court may “look beyond the ... application ... to
determine his financial condition.” Durrett v. Jenkins Brickyard, Inc., 678 F.2d 911, 917
(11th Cir.1982). Consequently the court held a hearing specifically regarding Plaintiff’s
motion to proceed in forma pauperis.
At the hearing, the Court conducted an in-depth review into Coggins’ financial status
including information pertaining to (1) goods and services received by plaintiff from his
church in the form of clothing, transportation, gas and other support not reported as income;
(2) transfers of valuable property by plaintiff to his church on an on-going basis; and (3) facts
indicating that the plaintiff retained control of, and personally benefitted from, donated
property despite the 501(c)(3) status of the church.3 Coggins also testified that he has access
to an ongoing line of credit through his bank for additional expenditures for up to a thousand

3

Coggins testified that the vehicles used by himself and his wife were owned by
the church but were used for all forms of personal transportation, regardless of whether
the underlying reason for needing the vehicle was church related or personal.
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dollars. Additionally, because plaintiff contends that his wife, not he, is the owner of assets
that he uses jointly with her, the court inquired regarding those assets as well. The Court
recognizes that property which is solely the property of Coggins’ wife based on her
inheritance of her former husband’s estate cannot be considered. The Court looks only to
asserts and income derived by Coggins or which would be considered community property.
Based on the evidence learned at the hearing, the Court finds that Coggins does not meet the
requirements for filing his claims in forma pauperis. Specifically, Coggins admitted in the
hearing that he donates all available time and income to the Brides of Christ Church which
he and his family founded and continue to control. Coggins recognized that he has medical
bills above what is covered by his insurance that he is currently paying and that more bills
will be coming due that he will have to adjust his budget to pay. Coggins testified that he
would be able to meet all of his financial obligations, including the new bills. Coggins is
also provided certain assets by the Brides of Christ Church, including vehicles, which he
does not declare in his application for pauperis status. Coggins retains the benefits and
control over all items he donates to the church. While the Court certainly respects Coggins
desire to contribute to his church, the Court notes that the money donated to the Church is
money that could be used to pay his filing fees. In other words, Coggins elects to donate the
money to the church and save money by utilizing the church for his personal use in ways that
would otherwise constitute expenses to be paid out of pocket such as paying his filing fees.
While this is certainly his right to do, the Court must consider Coggin’s election to donate

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his assets to the church when making his in forma pauperis determination. The Court finds
that Coggins does have the financial resources to pay the filing fee for this case, but elects
to do other things with those resources. Furthermore, the court notes that Coggins has
continuously and knowingly refused to comply with similar orders by all Federal Courts in
numerous filings. See e.g., Coggins v. Abbett, 555 U.S. 1151, 129 S.Ct. 1048, 173 L.Ed.2d
466 (Jan. 26, 2009); Coggins v. Town of Jackson’s Gap, 555 U.S. 1160, 129 S.Ct. 1056, 173
L.Ed.2d 481 (Jan. 26, 2009); Coggins v. Alabama, 555 U.S. 1143, 129 S.Ct. 1012, 173
L.Ed.2d 304 (Jan. 21, 2009); Coggins v. Parr, 555 U.S. 1094, 129 S.Ct. 931, 173 L.Ed.2d
102 (Jan. 12, 2009). Notably, the court looks to the ruling by the Supreme Court in a writ
of certiorari action regarding a similar disregard to the court’s ruling on a petition for in
forma pauperis and states;
Motion of petitioner for leave to proceed in forma pauperis denied, and
petition for writ of certiorari to the United States Court of Appeals for the
Eleventh Circuit dismissed. See Rule 39.8. As petitioner has repeatedly
abused this Court's process, the Clerk is directed not to accept any further
petitions in noncriminal matters from petitioner unless the docketing fee
required by Rule 38(a) is paid and petition submitted in compliance with Rule
33.1. See Martin v. District of Columbia Court of Appeals, 506 U.S. 1, 113
S.Ct. 397, 121 L.Ed.2d 305 (1992).
Coggins v. Tallapoosa County Dept of Revenue, 130 S.Ct. 1898, 176 L.Ed.2d 357
(U.S. March 22, 2010).

Based on the above, the Court must DENY Coggins’ applications to proceed in forma
pauperis
Accordingly, it is ORDERED that Plaintiff’s application to proceed in forma
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pauperis (Docs. 2) is DENIED. Plaintiff is DIRECTED to pay the filing fee of $350.00 to
the Clerk of Court on or before May 31, 2012.
Plaintiff is advised that if he fails to pay the filing fee as directed within the time
allowed by the Court this action may be dismissed.
DONE this 17th day of May, 2012.

/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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