Smith v. Berryhill

Filing 3

Order re: 2 MOTION for Leave to Proceed in forma pauperis filed by Curtis Smith; plaintiff shall either pay the $400 filing fee or file an amended IFP motion or sworn supplement to the present IFP motion that provides the information requested in order by 3/27/2018. Signed by Magistrate Judge Katherine P. Nelson on 3/14/18. (srr)

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

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Civil Action No. 18-00115-WS-N

ORDER
This action is before the Court on Plaintiff Curtis Smith’s Complaint (Doc. 1)
and his motion to proceed without prepayment of fees and costs (Doc. 2). The motion
to proceed in forma pauperis (“IFP”) has been referred to the undersigned United
States Magistrate Judge for pretrial disposition pursuant to 28 U.S.C. § 636(b)(3) and
Local Rule 72.2(c)(3).
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).
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“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 need not
show that the litigant is “absolutely destitute” to qualify for indigent status
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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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 or ‘can get’ from
those who ordinarily provide the applicant with the ‘necessities of life,’ such as ‘from

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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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, 131920 (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 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

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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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)).
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 undersigned finds that the following additional
information is needed concerning the Plaintiff’s complete financial picture:
1.

Plaintiff indicates that he co-owns an item of real property with
Stephanie Braxton. (Doc. 2 at 2). Plaintiff identifies the property as “city
lot and house” but failed to provide the property address. Plaintiff shall
provide the full address of this item of real property.

2.

Plaintiff indicates that he pays $260 in rent on a monthly basis, but also
states, “I live with my fiancé and she pays the bills.” (Doc. 2 at 3, ¶ 3a
and Doc. 2 at 4, ¶ 5). Plaintiff shall clarify which bills he pays and which
bills his fiancé pays and shall provide an estimated monthly amount of
support he is receiving from his fiancé.

Accordingly, on or before Tuesday, March 27, 2018, 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 that provides the information requested above, along with
any additional information the Plaintiff feels is necessary to demonstrate entitlement
to proceed without prepayment of the filing fee. The failure to comply with this
directive 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
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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 14th day of March 2018.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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