Glasker v. Small Wonders

Filing 5

Order Plf is to file an amended IFP motion or sworn supplement as set out or pay the $400 filing fee NLT 4/21/2017. Signed by Magistrate Judge Katherine P. Nelson on 4/7/2017. (copy mailed to Plf on 4/07/17). (srd)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ERICA GLASKER,
Plaintiff,
v.
SMALL WONDERS,
Defendant.

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CIVIL ACTION NO. 17-0121-CG-N

ORDER
This action is before the Court on the motion for leave to proceed without
prepayment of fees and costs, or in forma pauperis (“IFP”), under 28 U.S.C. § 1915
(Doc. 4) filed by Plaintiff ERICA GLASKER (“the Plaintiff”).

Under S.D. Ala.

GenLR 72(b), this nondispositive pretrial motion has been referred to the
undersigned Magistrate Judge for determination in accordance with 28 U.S.C. §
636(b)(1)(A), Federal Rule of Civil Procedure 72(a), and S.D. Ala. GenLR 72(a)(2)(S).
Authority for granting a plaintiff permission to proceed without prepayment
of fees and costs is found at 28 U.S.C. § 1915, which provides 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 [person] possesses [and] 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); 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.” 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 v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306-07 (11th Cir.
2004) (per curiam) (“[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.”
(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
1 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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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.”
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

In this Circuit, “[u]npublished opinions are not considered binding precedent, but they
may be cited as persuasive authority.” 11th Cir. R. 36-2 (effective Dec. 1, 2014). See also
Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 n.7 (11th Cir. 2007)
(“Unpublished opinions are not controlling authority and are persuasive only insofar as
their legal analysis warrants.”).

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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 recognized that, for purposes of determining IFP eligibility, it is
appropriate to consider any support that an IFP applicant might receive from a

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 the income or resources of interested
persons, such as spouses and parents.” (citation omitted and emphasis added)).
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The undersigned requires this inquiry when it appears likely that a plaintiff’s
primary means of support is through such an individual.

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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 sworn IFP motion (Doc. 4), she is
single and supports two (2) dependent children. Plaintiff is currently employed part
time with FedEx earning $120 a week. She owns real property valued at $107,000,
for which she has owes $100,000 on a mortgage. Plaintiff did not complete the
section of the form identifying her other major assets (e.g., automobiles, motor
homes, etc.). She reports $0 total cash in banks, savings, etc. Plaintiff did not
provide any information when asked to list monies received by her, or held by
others for her, in the last 12 months. Her only reported debt is her mortgage note
on which she pays $766 a month. Plaintiff receives $300 a month in food stamps.
Upon consideration, the undersigned finds that the following additional
information is needed concerning the complete financial picture of the Plaintiff and her
family:
1. The Plaintiff must affirmatively report “other assets/property, such as
automobiles, boats, motor homes, court judgments, etc.” (Section VI.2.a).
2. The Plaintiff must affirmatively report an amount of “monies received by

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you during the last twelve (12) months, or held for you by banks, savings
and loan associations, prisoner accounts, other financial institutions, or
other sources…” that were received from “any other sources.” (Section
VI.2.c).
As such, no later than Friday, April 21, 2017, the Plaintiff is ORDERED to
either 1) file an amended IFP motion or sworn supplement (or one in substantial
compliance with 28 U.S.C. § 1746) to the present IFP motion providing the information
requested above, or 2) pay the requisite $400 filing fee. The failure to do either will
result in entry by the undersigned of a report and recommendation that this action be
dismissed for failure to prosecute and obey the Court’s orders.

See, e.g., Bland v.

Colvin, Civil Action No. 14-00374-KD-N, 2014 WL 6451246 (S.D. Ala. Nov. 17, 2014)
(dismissing Social Security appeal, under both Fed. R. Civ. P. 41(b) and the Court’s
inherent power to manage its docket, because the plaintiff failed to comply with order
to file an amended IFP motion or pay the Court’s filing fees).

DONE and ORDERED this the 7th day of April 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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