Williams v. Berryhill

Filing 3

Order re: 2 MOTION for Leave to Proceed in forma pauperis filed by Kimberly D. Williams. Plaintiff must either pay the $400 filing fee or file an amended IFP motion or sworn supplement as set out no later than 8/23/2017. Signed by Magistrate Judge Katherine P. Nelson on 8/2/2017. (srd)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KIMBERLY D. WILLIAMS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 17-00346-KD-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. 2) filed by Plaintiff KIMBERLY D. WILLIAMS (“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); (8/1/2017 electronic reference).
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
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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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.”
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
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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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
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.

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
executed in substantial compliance with 28 U.S.C. § 1746 and thus constitutes an
unsworn declaration made under penalty of perjury, she is married and has no
dependents.

She has been unemployed since 2013, and her spouse is also

unemployed.

Neither she nor her spouse receives welfare aid, but she receives

$36.00 a month in food stamps.

Her spouse receives $1,608 a month in Social

Security benefits. Her spouse owns a house with an estimated value of $50,000 and
a current mortgage of $58,000. She has two automobiles registered in her name: a
2007 model compact hatchback, which is fully paid for and has an estimated value of
$2,646; and a 1999 model truck with an estimated value of $1,936 but for which she
owes $3,7000. She reports no other major assets. She reports $0 total cash in
banks, savings, etc., and reports $0 in monies received or held for her during the last
twelve months.

She reports almost $2,000 in various financial debts and

obligations. Her reported monthly expenses are $500 for the house mortgage, $40

on the various reported debts, and $66 for medical insurance.
Upon consideration, the undersigned finds that the information in the
Plaintiff’s present motion (Doc. 2) is insufficient to make an informed IFP
determination.

More specifically, the Plaintiff reports only $606 in monthly

expenses, which leaves $1,002 a month from her spouse’s Social Security benefits,
along with the $36 per month in food stamps she receives. However, it appears
possible that the Plaintiff may not have reported all of her monthly expenses (e.g.,
food, utilities, car payment).
Accordingly, no later than Wednesday, August 23, 2017, the Plaintiff must
either 1) pay the full $400 filing fee, or 2) file an amended IFP motion or sworn
supplement to the present IFP motion providing any additional information the
Plaintiff feels is necessary to address the above-stated concerns and to otherwise
demonstrate entitlement to proceed without prepayment of the filing fee.

The

failure to comply with this directive, or the failure to file an amended IFP motion or
supplement that sufficiently satisfies the requirement of poverty, will result in entry
of a recommendation to the Court that the Plaintiff be denied leave to proceed IFP in
this action, and that this action be dismissed without prejudice for failure to
prosecute and obey the Court’s orders unless the Plaintiff pays the filing fee within
the time period for objections to the recommendation.

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

docket); Woods v. Dahlberg, 894 F.2d 187, 187 (6th Cir. 1990) (per curiam) (denial of
IFP motion is “the functional equivalent of an involuntary dismissal”).
DONE and ORDERED this the 2nd day of August 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE