Johnson v. Social Security Administration Commissioner

Filing 5

REPORT AND RECOMMENDATIONS re 2 MOTION for Leave to Proceed in forma pauperis MOTION for Service filed by Randall M Johnson. Objections to R&R due by 12/27/2012. Signed by Honorable James R. Marschewski on December 10, 2012. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

RANDALL M. JOHNSON
v.

PLAINTIFF
Civil. No. 2:12-cv-02310-PKH-JRM

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
On December 7, 2012, Plaintiff submitted a complaint for filing in this district, together
with a request for leave to proceed in forma pauperis (“IFP”). ECF Nos. 1, 2. For reasons stated
below, the undersigned recommends that Plaintiff’s motion be denied.
Federal courts have the statutory authority to permit the commencement of a civil action
without prepayment of fees or costs by a person who submits an affidavit that he is unable to pay
such costs or give security therefor. 28 U.S.C. § 1915(a). The purpose of 28 U.S.C. § 1915 is
to ensure that indigent litigants have an entre, not a barrier, to the federal courts. In re
Williamson, 786 F.2d 1336, 1338 (8th Cir. 1986) (quoting Souder v. McGuire, 516 F.2d 820, 823
(3rd Cir. 1975)). Although a claimant need not be “completely destitute” to take advantage of
the IFP statute, he or she must show that paying the filing fee would result in an undue financial
hardship. Williamson, 786 F.2d at 1338.
Plaintiff’s IFP application reveals that he receives approximately $2,732 per month in
service-connected VA benefits and $436 per month in service-connected combat pay. ECF No.
2, at 2. Plaintiff freely owns two vehicles and a bass boat with a trailer. Id. He has no
dependents. Id.

-1-

AO72A
(Rev. 8/82)

Nothing in the statute suggests that Veterans' benefits cannot be taken into account for
purposes of determining whether a litigant is financially eligible for IFP status. Other federal
courts have, in fact, considered Veterans' benefits when determining whether a person is indigent
for IFP purposes. See, e.g., Slupkowski v. Terrell, No. 08-1081, 2008 WL 3911386, at *2 (D.
Minn. Aug. 18, 2008); Curiale v. Graham, No. 96-4125, 1997 WL 527659, at *1 (10th Cir.
1997) (unpublished opinion) (district court properly denied IFP application where disabled
litigant had “a steady income from social security and veteran's benefits”), cert. denied, 522 U.S.
1127 (1998); Henderson v. Alameda County Medical Center, No. C 07-02693CW, 2007 WL
3245265, at *1-2 (N.D. Cal. Nov. 2, 2007) (court fees not waived pursuant to § 5301(a)(1) where
IFP applicant's “entire income” purportedly came from Veterans' benefits); Clayton v. Mege, No.
3:07-CV00118, 2007 WL 846627, at *1 (M.D. Pa. March 19, 2007) (IFP application denied
based on applicant's total income, including Veterans' benefits); Angell v. Discover Bank, No.
5:04CV427-SPM/AK, 2005 WL 1684413, at *2 (N.D. Fla. July 15, 2005).
In this instance, Plaintiff has not shown that his monthly income of $3,168 is insufficient
to allow him to pay the filing fee, nor has he shown that paying the filing fee would create an
undue financial hardship. For these reasons, the undersigned finds that a waiver of the filing fee
would be inappropriate in this case.
The undersigned recommends that Plaintiff’s IFP application be denied and he be
required to pay the filing fee of $350.00. The parties have fourteen days from receipt of this
Report and Recommendation in which to file written objections pursuant to 28 U.S.C. §
636(b)(1). The failure to file timely objections may result in waiver of the right to appeal
questions of fact. The parties are reminded that objections must be both timely and

-2-

AO72A
(Rev. 8/82)

specific to trigger de novo review by the district court.
ENTERED this 10th day of December 2012.

/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

-3-

AO72A
(Rev. 8/82)