THOMAS et al v. Chattahoochee Judicial Circuit et al

Filing 37

ORDER denying 36 Motion for Leave to Appeal in forma pauperis. Ordered by U.S. District Judge CLAY D LAND on 12/08/2014. (CGC)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
JAMES R. THOMAS, JR. and
SABRINA R. THOMAS,

*
*

Plaintiffs,
*
vs.

CASE NO. 4:14-CV-9-CDL

*
CHATTAHOOCHEE JUDICIAL CIRCUIT,
et al.,
*
Defendants.

*
O R D E R

Plaintiffs filed a

pro se

civil action in the Superior

Court of Chattahoochee County seeking $90 million in damages
against a motor vehicle dealership and a bank based on alleged
fraud

and

illegal

activity

financing of a vehicle.

relating

They lost.

to

their

purchase

and

Rather than pursue their

remedies in the state system (or perhaps in addition to those
remedies), Plaintiffs filed the present action in this Court
against the judges of the Chattahoochee Judicial Circuit, the
Chattahoochee County superior court clerk, the Governor of the
State

of

Georgia,

governmental
attorneys.
state

parties

to

the

Attorney
state

General,
court

and

action

the
and

nontheir

In this federal action, Plaintiffs allege that the

actors

allegedly

Georgia’s

violated

failed

to

use

their
the

rights
proper

when

the

procedures

state
for

judges

assigning

their case to a state court judge and that their race played
some

role

in

the

assignment.

They

sought

to

federal complaint without paying the filing fee.
to

appeal

this

Court’s

dismissal

of

their

pursue

their

They now seek

Complaint

without

having to pay the fees and costs for an appeal.
No citizen of the United States should be denied access to
justice because he cannot afford to pay a court filing fee.

But

as recognized in this Circuit and others, the privilege of using
the federal courts for free to right an individual civil wrong
should be granted “‘sparingly.’”

Martinez v. Kristi Kleaners,

Inc., 364 F.3d 1305, 1306 (11th Cir. 2004) (per curiam) (quoting
Flowers v. Turbine Support Div., 507 F.2d 1242, 1244 (5th Cir.
1975)).

Plaintiffs’ present motion to proceed in forma pauperis

(“IFP”) on appeal (ECF No. 36) raises the serious question of
whether “sparingly” means excusing payment of a filing fee by
civil litigants whose income is two and one-quarter times the
federal

poverty

guidelines,

who

own

their

own

home

and

automobile, and who hold several active credit cards, but claim
that they cannot manage their monthly household budget to pay
their regular expenses plus a court filing fee.
Court

finds

that

Plaintiffs’

financial

Because the

condition

does

not

prevent them from paying the court filing fee for an appeal and
because their appeal is frivolous, the Court denies their motion
to proceed IFP on appeal.

2

STANDARD FOR PROCEEDING IFP
It is beyond dispute that the courthouse doors should not
be

shut

Congress

to

persons

codified

U.S.C. § 1915.

because
this

of

their

financial

fundamental

condition.

principle

in

28

That statute provides, in relevant part, that

any court “may authorize the commencement . . . or prosecution
of

any

suit,

action

or

proceeding

. . .

or

appeal

therein,

without the prepayment of fees . . . therefor, by a person who
submits an affidavit that includes a statement of all assets
such [person] possesses that the person is unable to pay such
fees

. . . .”

28

U.S.C.

§

1915(a)(1)

(emphasis

added).1

Congress further mandated that “[a]n appeal may not be taken in
forma pauperis if the trial court certifies in writing that it
is not taken in good faith.”

28 U.S.C. § 1915(a)(3).

Consistent with § 1915, Federal Rule of Appellate Procedure
24 requires a party wishing to appeal IFP to file a motion in
the

district

court

and

attach

an

affidavit

party’s inability to pay…for fees and costs.”
24(a)(1)(A).

that

shows

“the

Fed. R. App. P.

Rule 24 further provides that “[a] party who was

permitted to proceed in forma pauperis in the district-court
action . . . may proceed on appeal in forma pauperis without
further

authorization,

unless

. . .

1

the

district

court

. . .

Section 1915(a)(1) uses the phrase “all assets such prisoner
possesses,” but the statute has been interpreted to apply to all
persons seeking to proceed IFP. Martinez, 364 F.3d at 1306 n. 1.

3

certifies that the appeal is not taken in good faith or finds
that the party is not otherwise entitled to proceed in forma
pauperis . . . .”

Fed. R. App. P. 24(a)(3)(A).

Plaintiffs filed the affidavit required by Rule 24.

But

they may not proceed IFP on appeal if the Court certifies that
the appeal is not taken in good faith or finds that they are
otherwise

not

entitled

to

proceed

IFP.

For

the

reasons

explained more fully in the remainder of this Order, the Court
certifies that in its best judgment Plaintiffs’ appeal cannot be
taken in good faith.

The Court also finds that the affidavit

filed by Plaintiffs pursuant to Rule 24 establishes that they
are able to pay the fees and costs for an appeal; therefore,
they

are

not

entitled

to

proceed

IFP

on

appeal

for

this

additional, independent reason.
PROCEDURAL BACKGROUND
Shortly after this action was first filed, the magistrate
judge

denied

Plaintiffs’

motion

to

proceed

IFP

and

required

Plaintiffs to pay the $400 filing fee to proceed with their
action.

Order, Jan. 8, 2014, ECF No. 4.

The magistrate judge

concluded that the statements in the affidavits Plaintiffs filed
in support of their application to proceed IFP did not satisfy
the

requirements

magistrate
received

judge’s

over

of

poverty

order

$1,500

in

contemplated

noted
monthly

that

4

by

Plaintiff

social

§ 1915.
James

security

The
Thomas

disability

payments and social security benefits for his daughter.

The

order further observed that Plaintiff Sabrina Thomas reported
monthly income exceeding $1,350.

The magistrate judge found

that Plaintiffs collectively received an annual income in excess
of

$35,000.

Guidelines

Comparing

that

establishing

an

income
annual

to

the

income

Federal

of

Poverty

$19,530

as

the

income poverty line for a family of three, the magistrate judge
reached the reasonable conclusion that Congress did not intend
for

persons

considered

making

indigent

180%
for

of

the

purposes

poverty
of

guidelines

§ 1915.

The

to

be

magistrate

judge thus held that “Plaintiffs’ application and affidavit fail
to show that they are unable to pay the filing fee or support
themselves.”

Id. at 3.

Plaintiffs appealed the magistrate judge’s denial of their
IFP

application

to

the

district

judge,

who

magistrate judge’s denial of the application.
Jan. 15, 2014.
appeal
motion,

that

the

Text-Only Order,

Plaintiffs then filed a motion for leave to

decision

noting

affirmed

that

IFP.
the

The

district

Plaintiffs’

judge

collective

denied
annual

that
gross

income exceeds $35,000, which is nearly twice the 2013 Poverty
Guidelines for a family of three.
11.

The

district

judge

Order, Jan. 23, 2014, ECF No.

further

observed

that

although

Plaintiffs maintain that their expenses reach or exceed their
monthly net income, those expenses include over $13,000 in debt

5

owed on a 2007 Pontiac Torrent that they claim is only worth
$3,400.

The district judge also noted that Plaintiffs reported

owing over $3,200 to Best Buy and $2,100 to Fingerhut.
4.

Id. at

Explaining that proceeding IFP is a privilege that requires

an applicant to establish that he is “‘unable to pay for the
court fees and costs,’” the Court found that Plaintiffs had not
made that showing.
The

Court

Id. (quoting Martinez, 364 F.3d at 1307).

of

Appeals

nevertheless

allowed

Plaintiffs

to

appeal in forma pauperis the denial of their IFP application.
The Court of Appeals then vacated the District Court’s denial of
Plaintiff’s IFP application, criticizing the magistrate judge
for

not

explicitly

stating

in

his

denial

order

that

he

had

evaluated the Plaintiffs’ balance sheet in addition to their
income statement.

Thomas v. Chattahoochee Judicial Circuit, 574

F. App’x 916, 917 (11th Cir. 2014) (per curiam).

The Court of

Appeals made no mention of the district judge’s order affirming
the magistrate judge, which did indicate that the district judge
considered Plaintiffs’ assets and liabilities.

The Court of

Appeals remanded the action to the District Court for further
proceedings consistent with its opinion.
Emboldened by the Court of Appeals’s ruling in their favor
on

their

IFP

request

and

with

a

desire

to

get

rid

of

the

district judge and magistrate judge who had ruled against them,
Plaintiffs filed a motion to recuse the magistrate and district

6

judges.

They argued that the judges showed “pervasive bias in

denying” their IFP request.
They

also

maintained

Mot. for Recusal 6, ECF No. 17.

that

the

district

judge

should

recuse

because ten years prior to the events giving rise to Plaintiffs’
action in this Court, he had practiced as an attorney in the
judicial circuit which was the subject of Plaintiffs’ claims.
Plaintiffs

similarly

sought

recusal

of

the

magistrate

judge

because he had also practiced in that same judicial circuit
prior

to

the

events

giving

rise

to

their

complaint

and

had

previously served as a municipal court judge for the Municipal
Court

of

Columbus,

Georgia,

which

is

located

in

geographic territory as that judicial circuit.
judge denied that motion in a written order.

the

same

The district

Order, Sept. 29,

2014, ECF No. 19.
On

remand

magistrate
Appeals’s

from

judge,

the

Court

perhaps

admonishment

a

of

bit

regarding

Appeals’s
gun-shy

his

IFP

IFP

from

ruling,

the

findings,

the

Court
took

of
the

easy, but in retrospect wrong, road and allowed Plaintiffs to
proceed IFP.
order,

Order, Oct. 2, 2014, ECF No. 20.

however,

Plaintiffs’

the

Complaint

magistrate
be

dismissed

judge

In that same

recommended

pursuant

to

28

that
U.S.C.

§ 1915(e)(2)(B)(ii) because they failed to state a claim upon
which relief may be granted.

Id. at 7.

The district judge

agreed that the Complaint failed to state a claim for relief but

7

noted that after the magistrate judge filed his recommendation,
Plaintiffs
Order,

had

Oct.

filed

17,

an

2014,

“amended

ECF

No.

supplemental

25.

Therefore,

complaint.”
rather

than

dismissing the action, the district judge remanded the matter to
the magistrate judge to review the amended complaint and provide
the Court with a report and recommendation as to whether the
amended complaint should be dismissed.

Id.

The magistrate

judge found that the amended complaint likewise failed to state
a

claim

and

recommended

that

it

be

dismissed.

Recommendation, Nov. 4, 2014, ECF No. 28.
adopted

the

magistrate

judge’s

Order

&

The district judge

recommendations

and

dismissed

Plaintiffs’ Complaint because it failed to state any claim upon
which relief may be granted.

Order, Nov. 26, 2014, ECF No. 31.

Judgment for the Defendants was entered on November 26, 2014.
J., Nov. 26, 2014, ECF No. 32.

Plaintiffs filed a Notice of

Appeal (ECF No. 33) and a motion to proceed in forma pauperis on
appeal

from

this

Court’s

judgment

dismissing

their

Amended

Complaint (ECF No. 36).
DISCUSSION
In
whether

the

following

Plaintiffs’

discussion,

affidavit

of

the

Court

indigence

first

examines

supports

their

contention that they are unable to pay the fees and costs for an
appeal and concludes that it does not.

8

The Court next analyzes

whether Plaintiffs’ appeal can be taken in good faith and finds
that it cannot.
I.

Plaintiffs’ Financial Condition
In support of their application to appeal IFP, Plaintiffs

rely upon affidavits similar to the ones they submitted when
they originally filed the action.

They report average joint

monthly gross income for the last twelve months of $3,725.44,
which equates to annual income of $44,705.28.
IFP 6, ECF No. 36.

Mot. to Proceed

They report that they expect “next month’s”

joint gross income to be $3,591.67, which would extrapolate to
annual income of $43,100.04.

Id.

Thus, Plaintiffs now make

225% of the annual poverty guideline for a family of three.2
Plaintiffs report that they own their own home and a vehicle.
They

report

joint

monthly

expenses

of

$3,581.50.

Id.

The

affidavit does not indicate whether the substantial portion of
their income from social security disability payments is taxed.
But even if their monthly expenses exceed their “net monthly
income,”

the

Court

notes

that

Plaintiffs

have

been

found

sufficiently creditworthy to have obtained a car loan, at least
two credit cards, and at least three store credit accounts.
The Court does not dispute that Plaintiffs may struggle
financially.

But surely, they are not indigent for purposes of

2

The poverty guideline for a family of three is now $19,790. Annual
Update of the HHS Poverty Guidelines, 79 Fed. Reg. 3593, 3593 (Jan.
22, 2014).

9

§ 1915 or for purposes of proceeding IFP on appeal under Federal
Rule of Appellate Procedure 24(a)(1)(A).

According to their

most recent affidavit, they make two and one-quarter times what
the

federal

government

has

determined

is

level income for a family of their size.
car.

the

annual

poverty

They own a home and a

They have credit cards and other established credit.

They

apparently have not found their situation to be so financially
distressed that they needed to file for protection under the
bankruptcy laws.
The purpose of § 1915 and the Appellate IFP Rules is to
make sure that the courthouse door is not closed to persons
based on their inability to pay a filing fee.

To find that

these Plaintiffs are sufficiently indigent to be excused from
paying filing fees would be tantamount to concluding that anyone
whose assets do not clearly exceed their liabilities is to be
excused from paying filing fees in civil litigation, regardless
of the amount of their income and how they manage it.

Although

Congress may not have intended for only destitute persons to be
able to proceed IFP, Congress did intend for a litigant to be
sufficiently

impoverished

to

be

afforded

the

privilege

of

pursuing civil litigation without paying for it.
According to the federal poverty guidelines for 2014, the
poverty
$19,790.

line

for

a

family

of

three

is

an

annual

income

of

The Court does not presently suggest that this figure

10

alone

establishes

whether

someone

may

IFP.3

proceed

See

Martinez, 364 F.3d at 1307-08 (requiring that courts compare
assets

to

liabilities

in

deciding

IFP

motions).

But

as

a

starting point, it should carry great weight, particularly when
an applicant’s income significantly exceeds the guideline.
an

applicant’s

income

is

more

than

two

times

the

When

poverty

guideline and an analysis of his assets and liabilities does not
otherwise support his contention that he cannot pay his court
fees, it is the Court’s duty to deny the request to proceed IFP.
Generosity

and

compassion

may

sway

the

conscience

toward

a

waiver of the filing fee, but it is respectfully submitted that
such

action

direction

would

that

make

“the

a

courts

sparingly.”

Martinez,

Finding

Plaintiffs’

that

mockery

364

of

should

F.3d

at

affidavits

the

Eleventh

grant
1306
on

Circuit’s

the

privilege

(emphasis

their

face

added).
clearly

establish that Plaintiffs are able to pay the fees and costs of
an

appeal,

the

Court

denies

their

motion

to

proceed

IFP

on

appeal.
II.

Plaintiffs’ Appeal Cannot Be Taken In Good Faith
Even

if

Plaintiffs

could

establish

that

they

are

sufficiently indigent, they are still not entitled to proceed on
appeal IFP because their appeal cannot be taken in good faith.
3

The Court of Appeals concluded that this was the magistrate judge’s
error when he denied Plaintiffs’ application to proceed IFP initially
in this action. See Thomas, 574 F. App’x at 917.

11

As

this

Court

plausible

claim

Accordingly,
Attorney

previously

it

Gen.,

for

relief

must
275

found,

be

F.

Plaintiffs

in

their

dismissed.

App’x

889,

to

Amended

See

892

fail

Cir.

a

Complaint.

Thibeaux

(11th

state

v.

U.S.

2008)

(per

curiam) (“[A] district court must dismiss an in forma pauperis
action if the court determines that the action is frivolous or
malicious;

fails

to

state

a

claim

on

which

relief

may

be

granted; or seeks monetary relief against a defendant who is
immune from such relief.”) (internal quotation marks omitted).
When reduced to its essence, Plaintiffs’ Amended Complaint
alleges

that

their

rights

were

violated

when

a

state

court

judge, who they contend should not have been assigned to their
state court action, prevented them from engaging in meaningful
discovery, dismissed many of their claims, and compelled them to
arbitrate the remaining ones.

Plaintiffs fail to allege why

they have no recourse to correct these errors through the state
appellate process.

Instead, they have opted to make a federal

case out of it by alleging in a mere conclusory manner that the
state court judges violated the case assignment system in order
to deny them their right of access to the courts and because
they

are

black.

But

Plaintiffs

fail

to

allege

any

facts

supporting their racial discrimination claims, and they likewise
fail to allege facts establishing a denial of due process.

12

It is likely that most of the Defendants in this action are
entitled to some type of immunity.

And a strong argument could

certainly be made that it is inappropriate for a federal court
to interfere with a state court’s case assignment system under
the circumstances alleged here.

But the Court does not need to

reach these issues of immunity or abstention to conclude that
Plaintiffs’ Amended Complaint must be dismissed.

Plaintiffs’

Amended Complaint simply does not “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570
(2007)).

The factual allegations fail “to raise a right to

relief above the speculative level.”

Twombly, 550 U.S. at 555.

And they certainly do not “raise a reasonable expectation that
discovery will reveal evidence of” Plaintiffs’ claims.
556.
and

Id. at

Plaintiffs’ Amended Complaint is littered with mere labels
conclusory

allegations,

none

of

which

are

sufficient

to

state a viable claim for relief.
Plaintiffs

may

genuinely

be

disgruntled

with

how

their

state court action was handled, and they have recourse there,
including
complaint,

an

appeal

however,

in

the

state

is

legally

system.

frivolous.

Their

federal

Nevertheless,

Plaintiffs do have the right to have this Court’s dismissal of
their Amended Complaint reviewed by the Eleventh Circuit Court

13

of Appeals.

But that right is not free.

They must pay the same

fees and costs that every other American with their income and
assets would be expected to pay.

Because their appeal cannot be

taken in good faith, they are not entitled to proceed IFP on
appeal.
CONCLUSION
The Court certifies that Plaintiffs’ appeal cannot be taken
in good faith.

The Court further finds that Plaintiffs have not

established that they are financially unable to pay the fees and
costs for an appeal.

Accordingly, Plaintiffs are not entitled

to proceed IFP on appeal.
If Plaintiffs wish to proceed with this appeal, they must
pay the entire $505.00 appellate filing fee within fourteen (14)
days.

Any further requests to proceed in forma pauperis on

appeal should be directed, on motion, to the United States Court
of Appeals for the Eleventh Circuit, in accordance with Federal
Rule of Appellate Procedure 24.

IT IS SO ORDERED, this 8th day of December, 2014.
S/Clay D. Land
CLAY D. LAND, CHIEF JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA

14