Lucy v. King et al

Filing 8

REPORT AND RECOMMENDATIONS re 2 MOTION for Leave to Proceed in forma pauperis filed by William N. Lucy. It is recommended that plaintiff's motion to proceed without prepayment of fees be DENIED and that plaintiff should pay the $350 filing fee. Objections to R&R due by 10/14/2008. Signed by Magistrate Judge William E. Cassady on 9/23/08. Copy mailed to plaintiff. (tgw)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION WILLIAM N. LUCY, Plaintiff, vs. WALTER MORTGAGE CO., et al., Defendants. REPORT AND RECOMMENDATION This action is before the Court on plaintiff's complaint (Doc. 1) and motion to proceed without prepayment of fees and costs (Doc. 2). The motion to proceed in forma pauperis has been referred to the undersigned for pretrial disposition. It is RECOMMENDED that plaintiff's motion to proceed without payment of fees (Doc. 2) be DENIED. Authority for granting plaintiff permission to proceed without prepayment of fees and costs is found at 28 U.S.C. § 1915: (a)(1) Subject to subsection (b), any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, 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 [person] possesses [and] that the person is unable to : : : : : CA 08-0415-WS-C

pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress. 28 U.S.C. § 1915(a)(1); see Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002) (affirming the application of § 1915's provisions to a non-prisoner's complaint). "The in forma pauperis statute, 28 U.S.C. § 1915, ensures that indigent persons will have equal access to the judicial system." Atwood v. Singletary, 105 F.3d 610, 612-613 (11th Cir. 1997), citing Coppedge v. United States, 369 U.S. 438, 446, 82 S.Ct. 917, 921-922, 8 L.Ed.2d 21 (1962). The opportunity to proceed as an indigent in civil cases, created by statute, is not considered a right but a privilege, Rivera v. Allin, 144 F.3d 719, 724 (11th Cir.), cert. dismissed, 524 U.S. 978, 119 S.Ct. 27, 147 L.Ed.2d 787 (1998), and "should not be a broad highway into the federal courts[,]" Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984). Thus, "a trial court has broad discretion in denying an application to proceed in forma pauperis under 28 U.S.C.A. § 1915, [but] must not act arbitrarily and it may not deny the application on erroneous grounds." Pace v. Evans, 709 F.2d 1428, 1429 (11th Cir. 1983), citing Flowers v. Turbine Support Division, 507 F.2d 1242, 1244 (5th Cir. 1975); see also Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 & 1306-

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1307 (11th Cir. 2004) ("[A] trial court has wide discretion in denying an application to proceed IFP under 28 U.S.C. § 1915. . . . However, in denying such applications a court must not act arbitrarily. Nor may it deny the application on erroneous grounds."). "In order to authorize a litigant to proceed in forma pauperis, the court must make two determinations: first, whether the litigant is unable to pay the costs of commencing this action; and second, whether the action is frivolous or malicious." Boubonis v. Chater, 957 F.Supp. 1071, 1072 (E.D. Wis. 1997), citing 28 U.S.C. § 1915(a) & (e)(2)(B)(i). "While one need not be absolutely destitute to qualify for in forma pauperis status, such benefit is allowed only when a movant cannot give such costs and remain able to provide for herself and her dependents." Mitchell v. Champs Sports, 42 F.Supp.2d 642, 648 (E.D. Tex. 1998) (citations omitted). "The question under 28 U.S.C. § 1915 is whether the litigant is `unable to pay' the costs, and the answer has consistently depended in part on [the] litigant's actual ability to get funds from a spouse, a parent, an adult sibling, or other next friend." Williams v. Spencer, 455 F.Supp. 205, 209 (D.Md. 1978); see Fridman v. City of New York, 195 F.Supp.2d 534, 537 (S.D.N.Y. 2002) ("In assessing an application to proceed in forma pauperis, a court may consider the resources that the applicant has or

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`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.' . . . If it appears that an applicant's `access to [] court has not been blocked by his financial condition; rather [that] he is "merely in the position of having to weigh the financial constraints imposed if he pursues [his position] against the merits of his case,"' then a court properly exercises its discretion to deny the application."). In Martinez, supra, the Eleventh Circuit determined that affidavit statements satisfying the requirement of poverty should be accepted by the trial court "absent a serious misrepresentation, and need not show that the litigant is `absolutely destitute' to qualify for indigent status under § 1915." 364 F.3d at 1307 (citation omitted); see also id. ("Such an affidavit will be held sufficient if it represents that the litigant, because of his poverty, is unable to pay for the court fees and costs, and to support and provide necessities for himself and his dependents."). A review of the complaint and motion reveals that the divorced plaintiff, during the last twelve (12) months, has received an average of $600.00 monthly from business, professional or "other forms of selfemployment[.]" (Doc. 2, at 2) In addition, during this same time period, plaintiff has received $6,000.00 in unemployment benefits and $7,2000 in rent

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payments, interest or dividends. (Id. at 3) These three amounts, which average $1,700 monthly, well exceed plaintiff's average monthly expenditures of $934.84 and call into question Lucy's statements that he has only $50.00 in the bank (id. at 2) and that he subsists on food stamps and charitable contributions (id. at 3). The foregoing information suggests to the undersigned that plaintiff has resources from which he can obtain the necessary funds to pay the filing fee and still be provided with the necessities of life. CONCLUSION In light of the foregoing, the undersigned recommends that the Court DENY plaintiff's motion to proceed in forma pauperis (Doc. 2).1 The Court should order plaintiff to pay the $350.00 filing fee by a date certain or face dismissal of his complaint for non-payment of the filing fee. The instructions which follow the undersigned's signature contain important information regarding objections to the report and recommendation

See Lister v. Department of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) ("Our sister circuits have held that magistrate judges have no authority to enter an order denying IFP status. . . . Because this was a dispositive matter, under Fed.R.Civ.P. 72(b), the magistrate judge should have issued a report and recommendation for decision by the district court."). 5

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of the Magistrate Judge. DONE this the 23rd day of September, 2008. s/WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE

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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND FINDINGS CONCERNING NEED FOR TRANSCRIPT l. Objection. Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the Clerk of this court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for challenging the findings and recommendations of the Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that: A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a `Statement of Objection to Magistrate Judge's Recommendation' within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection. A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed. 2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C. § 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original records in this case are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.

_s/WILLIAM E. CASSADY_____________ UNITED STATES MAGISTRATE JUDGE

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