SHAREEF v. SECRETARY OF VETERANS AFFAIRS et al

Filing 5

ORDER GRANTING #2 Motion for Leave to Proceed in forma pauperis but DISMISSING case as frivolous. Plaintiff's #1 Motion for Preliminary Injunction and #4 Amended Motion for Preliminary Injunction are DENIED as moot. Ordered by US DISTRICT JUDGE TILMAN E. SELF, III on 12/17/2019. (ech)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
KHALILAH A. SHAREEF, heir apparent for
deceased WILLIAM LINDY REID,
Plaintiff,
CIVIL ACTION NO.
5:19-cv-00483-TES

v.
SECRETARY OF VETERANS AFFAIRS, et
al.,
Defendants.
ORDER

Proceeding pro se, Plaintiff Khalilah A. Shareef filed this lawsuit alleging, inter
alia, violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq.
(“FDCPA”). See, e.g., [Doc. 4 at p. 2]. Before the Court is Plaintiff’s Application to
Proceed in District Court Without Prepaying Fees or Costs [Doc. 2] in which she seeks
leave to file the above-captioned lawsuit in forma pauperis. As discussed in greater detail
below, the Court GRANTS her request to proceed in forma pauperis but DISMISSES her
Amended Complaint [Doc. 4] without prejudice as frivolous because as a Chapter 7
debtor, she does not have standing to bring this lawsuit.
Federal law allows the Court to waive payment of a filing fee if a plaintiff’s
application indicates an inability to pay. 28 U.S.C. § 1915. A plaintiff’s application is
sufficient to warrant a waiver of the filing fee if it “represents that the litigant, because

of [her] poverty, is unable to pay for the court fees and costs, and to support and
provide necessities for [herself] and [her] dependents.” Martinez v. Kristi Kleaners, Inc.,
364 F.3d 1305, 1307 (11th Cir. 2004).
Upon review of Plaintiff’s Application, her form indicates that her monthly
expenses consist of utility bills in the amount of $240, that she has no rent or mortgage
obligation, and that she owns a home valued at $91,800. [Doc. 2 at pp. 3–4]. However,
the Court also notes that Plaintiff “filed bankruptcy [on November 4, 2019,] because of
hardship.” [Id. at p. 5]. Although she fails to indicate “how” as instructed on the Court’s
form, Plaintiff represents that she expects a major change to her monthly income or
expenses within the next 12 months. [Id.]. She also states that she does not expect to
spend any money for expenses or attorney fees in conjunction with this lawsuit. [Id.].
Based on her Application, the Court finds that Plaintiff is nonetheless unable to pay the
costs of commencing this action in her current financial state. Therefore, the Court
GRANTS Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or
Costs [Doc. 2]
If a district court allows a plaintiff to proceed in forma paurperis, it is obligated to
proceed with a screening of that plaintiff’s complaint to ensure that it states a claim for
which relief may be granted. Pursuant to 28 U.S.C. § 1915, “the court shall dismiss the
case at any time if the court determines that” a plaintiff’s allegation of poverty is untrue,
the action is frivolous or malicious or fails to state a claim on which relief may be

2

granted, or seeks monetary relief against a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2)(B)(i)–(iii).
Pertinent to this case, the Court verified that Plaintiff did, in fact, file a voluntary
bankruptcy petition under Chapter 7 on November 4, 2019. In re Khalilah An-Nura
Shareef, Ch. 7 Case No. 19-52084 (Bankr. M.D. Ga. Nov. 4, 2019), ECF No. 1. When a
debtor files a Chapter 7 petition, her assets (subject to certain exemptions) are
immediately transferred to a bankruptcy estate, and the Chapter 7 trustee is responsible
for selling the property in the estate and distributing the proceeds to creditors. 11 U.S.C.
§§ 541(a)(1), 704(a)(1), 726; see also Slater v. United States Steel Corp., 871 F.3d 1174, 1179–
80 (11th Cir. 2017).
Irrespective of the fact that Plaintiff does not state in her Amended Complaint
when the named-Defendants violated the relevant portions of the FDCPA, whatever
violations they committed, if any, ostensibly occurred prior to the filing of her Chapter
7 bankruptcy petition. Thus, any potential recovery from those claims would be
deemed prepetition assets that would go to pay her creditors from the underlying
Chapter 7 case. Cf. In re Lauer, No. 3:17-bk-1199-JAF, 2018 WL 7017734, at *2 (Bankr.
M.D. Fla. Jan. 12, 2018) (finding that recovery on purely state common law tort claims
would be a prepetition asset). And finally, because these claims are considered
prepetition assets, Plaintiff forfeits whatever recovery she may receive from them to the
bankruptcy estate, and only the Chapter 7 trustee has standing to pursue this civil legal

3

claim unless the trustee abandons the asset and returns the claim to the possession and
control of Plaintiff. Slater, 871 F.3d at 1179 (citing Parker v. Wendy’s Int’l, Inc., 365 F.3d
1268, 1272 (11th Cir. 2004)). Accordingly, Plaintiff has no standing to bring this suit, and
the Court DISMISSES it as frivolous. Plaintiff’s Motion for Preliminary Injunction
[Doc. 1] and her Amended Motion for Preliminary Injunction [Doc. 4] are DENIED as
moot.
SO ORDERED, this 17th day of December, 2019.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT

4