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
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