Marston v. Sunset Contracting, Inc.

Filing 3

Order re: 2 MOTION for Leave to Proceed in forma pauperis. Plaintiff must either pay the $400.00 filing fee or file an amended Motion for IFP by 2/8/2017 as set out. Clerk is directed to send Plaintiff a copy of Court's form IFP motion and this Order. Signed by Magistrate Judge Katherine P. Nelson on 1/18/2017. Copy to Plaintiff. (srd)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SCOTT MARSTON,
Plaintiff,
v.
SUNSET CONTRACTING, INC.,
Defendant.

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CIVIL ACTION NO. 17-00016-KD-N

ORDER
This action is before the Court on the motion for leave to proceed without
prepayment of fees, or in forma pauperis (“IFP”), under 28 U.S.C. § 1915 (Doc. 2)
filed by Plaintiff SCOTT MARSTON (“the Plaintiff”). The motion has been referred
to the undersigned Magistrate Judge for appropriate action in accordance with 28
U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72, and S.D. Ala. GenLR 72(a).
See S.D. Ala. GenLR 72(b); (Case docket, 1/10/2017 electronic reference).
Generally, “[t]he clerk of each district court shall require the parties
instituting any civil action, suit or proceeding in such court, whether by original
process, removal or otherwise, to pay a filing fee…” 28 U.S.C. § 1914(a). Authority
for granting a party permission to proceed without prepayment of this filing fee is
found at 28 U.S.C. § 1915, which provides, in relevant part, as follows:
[Generally], 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 prisoner possesses that the
person is unable to 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). “Despite the statute's use of the phrase ‘prisoner possesses,’
the affidavit requirement applies to all persons requesting leave to proceed IFP.”
Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 n.1 (11th Cir. 2004) (per
curiam).
“The in forma pauperis statute, 28 U.S.C. § 1915, ensures that indigent
persons will have equal access to the judicial system.”

Attwood v. Singletary, 105

F.3d 610, 612-613 (11th Cir. 1997) (citing Coppedge v. United States, 369 U.S. 438,
446 (1962)). However, “[t]here is no question that proceeding in forma pauperis is a
privilege, not a right,” Camp v. Oliver, 798 F.2d 434, 437 (11th Cir. 1986),1 and
“should not be a broad highway into the federal courts.” Phillips v. Mashburn, 746
F.2d 782, 785 (11th Cir. 1984) (per curiam). Nevertheless, “while a trial court has
broad discretion in denying an application to proceed in forma pauperis under 28
U.S.C.A. § 1915, it 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) (per

curiam) (citing Flowers v. Turbine Support Div., 507 F.2d 1242, 1244 (5th Cir.
1975)); see also Martinez, 364 F.3d at 1306-07 (“[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
Accord Rivera v. Allin, 144 F.3d 719, 722, 724 (11th Cir. 1998) (“Leave to proceed
IFP is, and always has been, the exception rather than the rule. To commence a
civil lawsuit in federal district court, the general rule is that initiating parties must
prepay a filing fee … To be sure, proceeding IFP in a civil case is a privilege, not a
right—fundamental or otherwise.”), abrogated on other grounds, Jones v. Bock, 549
U.S. 199 (2007).

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on erroneous grounds.” (quotation omitted)).
When considering a motion filed pursuant to § 1915(a), “[t]he only
determination to be made by the court ... is whether the statements in the
affidavit satisfy the requirement of poverty.” Watson v. Ault, 525 F.2d 886,
891 ([5]th Cir. 1976). An affidavit addressing the statutory language
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. 331, 338–40, 69 S. Ct. 85, 88–89, 93 L. Ed. 43 (1948). 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. 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…The district court must provide a sufficient explanation for its
determination on IFP status to allow for meaningful appellate review.
O'Neal v. United States, 411 F.2d 131, 138 (5th Cir. 1969); Phipps v. King,
866 F.2d 824, 825 (6th Cir. 1988); Besecker v. State of Ill., 14 F.3d 309, 310
(7th Cir. 1994) (per curiam).
Martinez, 364 F.3d at 1307 (footnotes omitted).
“A court may not deny an IFP motion without first comparing the applicant's
assets and liabilities in order to determine whether he has satisfied the poverty
requirement.”

Thomas v. Chattahoochee Judicial Circuit, 574 F. App'x 916, 917

(11th Cir. 2014) (per curiam) (unpublished)2 (citing Martinez, 364 F.3d at 1307-08).
“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.”

In this Circuit, “[u]npublished opinions are not considered binding precedent, but
they may be cited as persuasive authority.” 11th Cir. R. 36-2. See also Henry v.
Comm'r of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam) (“Cases
printed in the Federal Appendix are cited as persuasive authority.”).

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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 ‘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.”); Sellers v. United
States, 881 F.2d 1061, 1063 (11th Cir. 1989) (per curiam) (funds “derived from family
sources” are relevant to IFP determination); Wilson v. Sargent, 313 F.3d 1315,
1319-20 (11th Cir. 2002) (per curiam) (same).3

“Federal Courts have frequently

Most cases considering the ability of someone else to pay these costs for a
putative pauper focus on whether those costs can be borne by a close family
member—such as a spouse, parent, an adult sibling, or other next friend. E.g.,
Williams, 455 F. Supp. at 209; see also Pisano v. Astrue, Civil Action No. 11–30269–
KPN, 2012 WL 79188, at *2 (D. Mass. Jan. 10, 2012) (“A number of courts have come
to the same conclusion that the income and resources of a spouse, if not other close
family members as well, are relevant to the determination of indigency under 28
U.S.C. § 1915.”) (collecting cases); but see Fridman, 195 F. Supp. 2d at 537 (“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.’” (emphasis added)), Ginters v. Frazier, Civ. No. 07-4681
(JMR/RLE), 2008 WL 314701, at *2 n.1 (D. Minn. Feb. 4, 2008) (“Federal Courts
have frequently recognized that, for purposes of determining IFP eligibility, it is
appropriate to consider any support that an IFP applicant might receive from a
spouse, or from any other individual.” (emphasis added)), and Akkaraju v.
Ashcroft, No. 03 C 6447, 2003 WL 22232969, at *1 (N.D. Ill. Sept. 26, 2003) (“In
evaluating the funds available to in forma pauperis movants, courts may consider

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recognized that, for purposes of determining IFP eligibility, it is appropriate to
consider any support that an IFP applicant might receive from a spouse, or from any
other individual.”

Ginters v. Frazier, Civ. No. 07-4681 (JMR/RLE), 2008 WL

314701, at *2 n.1 (D. Minn. Feb. 4, 2008) (emphasis added); accord Fridman, 195 F.
Supp. 2d at 537; Williams, 455 F. Supp. at 208-09; Akkaraju v. Ashcroft, No. 03 C
6447, 2003 WL 22232969, at *1 (N.D. Ill. Sept. 26, 2003) (“In evaluating the funds
available to in forma pauperis movants, courts may consider the income or resources
of interested persons, such as spouses and parents.” (citation omitted)).
Per the representations in the Plaintiff’s IFP motion (Doc. 2), which is in
substantial compliance with 28 U.S.C. § 1746 and thus constitutes an unsworn
declaration under penalty of perjury, he is unmarried and has no dependents. He
has been “unemployed-self employed” since December 2016, at which time he was
making approximately $1,600 a month.

He reports no welfare aid.

His only

reported major asset is a Chevy Suburban valued at $1,000, which is fully paid for.
He reports $700.00 cash in banks, savings, etc., and he has received approximately
$35,000 in the last twelve months from “business, profession or other forms of
self-employment.”4 He reports monthly expenses of $500 in rent and $200 towards

the income or resources of interested persons, such as spouses and parents.”
(citation omitted and emphasis added)).
The undersigned requires this inquiry when it appears likely that a plaintiff’s
primary means of support is through such an individual.
The Plaintiff’s complaint alleges a claim against the Defendant for discriminatory
termination in violation of the Americans with Disabilities Act. (See Doc. 1).

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credit card debt ($1,000 total).
Upon consideration of the foregoing representations, the undersigned is not
convinced that requiring payment of the $400.00 filing fee for this civil action would
deprive the Plaintiff of the basic necessities of life.
1307.5

See Martinez, 364 F.3d at

Accordingly, no later than Wednesday, February 8, 2017, the Plaintiff

must either 1) pay the full $400 filing fee, or 2) file an amended IFP motion providing
any additional information the Plaintiff feels is necessary to demonstrate entitlement to
proceed without prepayment of the filing fee.

The failure to respond to this order, or

the failure to file an amended IFP motion that sufficiently satisfies the requirement of
poverty, will result in entry by the undersigned of a recommendation to the Court that
Marston be denied leave to proceed IFP in this action, that he be ordered to pay the
filing fee by a reasonable deadline, and that this action be dismissed without prejudice
for failure to prosecute and obey the Court’s orders if Marston fails to do so.

See Betty K

Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005) (holding that a
district court may dismiss an action for failure to prosecute and obey a court order under
both Federal Rule of Civil Procedure 41(b) and the court’s inherent power to manage its

However, this termination is alleged to have occurred in March or April of 2015.
(See id.). Thus, it appears the Plaintiff has found some gainful employment since
then.
The January 2016 federal poverty guideline for a single-person household in any of
the 48 contiguous states, as published by the U.S. Department of Health and Human
Services, is $11,880. See https://aspe.hhs.gov/poverty-guidelines (last visited Jan.
18, 2017). The Plaintiff’s income over the last twelve months is almost triple that
amount. Cf. Martinez., 364 F.3d at 1308 n.5 (“According to the United States
Department of Health and Human Services, the poverty level for 2002 for a single
person with no dependents was $8,860 per year or $783.33 per month. Therefore,
Martinez was above the poverty line and not ‘absolutely destitute.’ ”).

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docket).
The Clerk of Court is DIRECTED to send the Plaintiff a copy of this Court’s form
IFP motion along with this Order.6

DONE and ORDERED this the 18th day of January 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

Extra copies can also be printed from the list of forms on the Court’s website:
http://www.alsd.uscourts.gov/forms/all-forms

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