In re: James R. Johnson et al

Filing 24

MEMORANDUM ORDER, Setting Deadlines( Notice of Compliance deadline set for 8/22/2016.)(1) the applications D.I. 8 10 are DENIED without prejudice to renew; and (2) on or before August 22,2016, the appellant/debtor shall pay the $298.00 filing fee, payable to the United States Bankruptcy Court for the District of Delaware (Office of clerk, U.S. Bankruptcy Court or submit to the United States District Court. Signed by Judge Gregory M. Sleet on 7/28/2016.(aah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: JAMES R. JOHNSON,
Debtor,

JAMES R. JOHNSON,
Appellant,
v.
UNITED STATES TRUSTEE,
Appellee.

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Bankruptcy Case No. 15-10365-BLS
Bankruptcy Appeal No. 15-00046

Civ. No. 15-792-GMS

MEMORANDUM ORDER
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, 2016, having considered the
At Wilmington this '}-( day of \ )
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appellant's applications to proceed without prepayment of fees pursuant to 28 U.S.C. § 1915
(D.I. 8, 1O);
IT IS ORDERED THAT: (1) the applications (D.I. 8, 10) are DENIED without prejudice
to renew; and (2) on or

befor~..S J ~, 2016, the appellant/debtor shall pay the $298.00

filing fee, payable to the United States Bankruptcy Court for the District of Delaware (Office of
Clerk, U.S. Bankruptcy Court, 824 Market Street, Wilmington, DE 19801) or submit to the
United States District Court (Office of Clerk, 844 N. King Street, Wilmington, DE, 19801) a
complete application to proceed without prepayment of fees (AO Form 239, copy attached) and
brief explaining the discrepancies in the appellant's filings, for the reasons that follow:
1.

The appellant James R. Johnson ("the appellant") who appears pro se, filed this

bankruptcy appeal without prepayment of the filing fee or an application to proceed informa

pauperis. As a result, on September 21, 2015, the court ordered the appellant to either pay the
$298.00 filing fee or submit a long form application to proceed in District Court without
prepaying fees or costs, AO 239. (D.I. 3) In tum, the appellant submitted an application but,
instead of the long form application, submitted a short form application, AO 240. (D.I. 8.) The
court entered a second order on October 7, 2015 (D.1. 9), that reiterated the appellant was
required to either pay the filing fee or submit a long form application to proceed in District Court
without prepaying fees or costs, AO 239. (D.I. 10.)
2.

The appellant complied with the order and submitted the long form application on

October 23, 2015. 1 The application indicates that the appellant has a monthly income of
$648.00, a home valued at $300,000, and total monthly expenses of $5,714. Acting United
States Trustee Andrew R. Vara ("the trustee") opposes the motion. (D.I. 11.) The trustee,
relying upon sworn bankruptcy filings by the appellant, states that the information in the
appellant's application differs from information the appellant provided in bankruptcy
proceedings filed by the appellant and his spouse. For example, the trustee advises that the
appellant's recent bankruptcy filings showed more than $3,600 in combined monthly income
during the last 12 months, while the instant application disclose only $628. In addition, the
application filed in this appeal fails to disclose several other assets claimed in the appellant's
bankruptcy schedules and includes more monthly expenses than the appellant previously
claimed. See Banla. D. Del. Case No. 15-10365, D.I. 1at8, 11, 23, 26, 28 and Case No.
15-10894, D.I. 1 at 7, 22, 25, 28; D.I. 20 at 3.

1

The court inadvertently entered a third order on November 5, 2015, after appellant had
submitted the long form application. (D .I. 15.)
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3.

The informa pauperis statute, 28 U.S.C. § 1915, "is designed to ensure that

indigent litigants have meaningful access to the federal courts." Neitzke v. Williams, 490 U.S.
319, 324 (1989). Section 1915(a) allows a litigant to commence a civil or criminal action in
federal court informa pauperis by filing in good faith an affidavit stating, among other things,
that he is unable to pay the costs of the lawsuit. See Neitzke, 490 U.S. at 324; Douris v.
Middletown Twp., 293 F. App'x 130, 132 (3d Cir. 2008) (unpublished).

4.

The decision to grant informa pauperis status turns on whether an applicant is

"economically eligible" for such status. Taylor v. Supreme Court ofNew Jersey, 261 F. App'x
399, 400 (3d Cir. 2008) (unpublished) (quoting Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir.
1976)). A person need not be "absolutely destitute" to proceed informa pauperis, however, an
affiant must show the inability to pay the filing and docketing fees. Id. (citations omitted).
5.

The court takes judicial notice of the discrepancies between the application at

issue and filings by the appellant in the bankruptcy court, all having been filed under penalty of
perjury. The court also notes that the appellants provided the information at issue in the
bankruptcy court on February 23, 2015 (D. Del. Case No. 15-10365, D.I. 1), April 27, 2015, and
May 10, 2015 (D. Del. Case No. 15-10894, D.I. 1, 20), all prior to the time this appeal was
commenced on September 9, 2015. It may be that the appellant's financial circumstances have
changed. Therefore, given the appellant's representation of his assets in the bankruptcy filings
that are at odds with the filing in the instant appeal, the appellant will be given one final
opportunity to submit a long form application to proceed in District Court without prepaying fees
or costs, AO 239, or to pay the filing fee owed. Should the appellant opt to seek informa
pauperis status, due to the discrepancies noted, the appellant shall provide the court with an

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explanation of the reasons for the discrepancies between the bankruptcy court filings and the
long form application to proceed in District Court without prepaying fees or costs, AO 239, filed
by the appellant on October 9, 2015 (D .I. I 0) as well as any discrepancies between the
bankruptcy court filings and those in a newly filed long form application.
6.

Failure to timely comply with the order shall result in dismissal of this appeal

without prejudice.

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