Burns v. State of Georgia, et al.

Filing 8

ORDER denying re 7 Appeal of Magistrate Judge Decision to District Court filed by Ellison Robert Burns, Sr. The Plaintiff shall have twenty days from the date of this Order to submit an appropriate answer as to whether he anticipates receiving any income within the next year. Signed by Judge William T. Moore, Jr on 3/28/2014. (loh)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

ELLISON ROBERT BURNS, SR.,
Plaintiff,
V.

CASE NO. CV413-261
U.S. DEPARTMENT OF
LABOR/OLMS; STATE OF GEORGIA;
INTERNATIONAL LONGSHOREMEN
ASSOCIATION; MR. WILBERT
ROWELL, International Vice
President; WILLIE SEYMORE,
I.L.A. Local 1414 President;
and WILLIE SEYMORE,
International Vice President;

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Defendants.

ORDER

Before the Court is Plaintiff's Appeal (Doc. 7) from the
Magistrate Judge's January 2, 2014 Order (Doc. 6) denying
Plaintiff's Motion for Leave to Proceed In Forma Pauperis (Doc.
2) . Previously, the Magistrate Judge denied Plaintiff pauper
status because Plaintiff's answer to a question concerning any
anticipated future income was that the question was "frivolous
and deceitful." (Doc. 6 at 1-2.) In this appeal, Plaintiff
appears to object to the Magistrate Judge's denial of
Plaintiff's motion on this ground, stating that "Plaintiff does
not have the power to foresee into the future and anticipate any
future income."

(Doc. 7 at 1.)

-

The Magistrate Judge's denial of Plaintiff's Motion for
Leave to Proceed In Forma Pauperis is a ruling on a
nondispositive matter. As a result, this Court's review of that
decision is governed by Federal Rule of Civil Procedure 72.
Under Rule 72, this Court must consider timely objections and
modify or set aside any part of the order that is clearly
erroneous or is contrary to law." Fed. R. Civ. P. 72(a); see 18
U.S.C. § 636(b) (1) (A) (authorizing magistrate judge to decide
nondispositive matters, which district court may reconsider
"where it has been shown that the magistrate judge's order is
clearly erroneous or contrary to law").
This standard—clearly erroneous or contrary to law—is
exceedingly deferential. Pigott v. Sanibel Dev., LLC, 2008 WL
2937804, at *5 (S.D. Ala. July 23, 2008) (unpublished) (citing
Docimiak v. Dominium Mgmt. Servs., Inc., 240 F.R.D. 451, 452 (D.
Minn. 2006)). A ruling is clearly erroneous where either the
magistrate judge abused his discretion or the district court,
after reviewing the entirety of the record, " is left with a
definite and firm conviction that a mistake has been made.'
Id. (quoting Murphy v. Gardner, 413 F. Supp. 2d 1156, 1162 (D.
Cob. 2006)). A decision by the magistrate judge is contrary to
law where it either fails to follow or misapplies the applicable
law.

Id. (quoting S.E.C. v. Cobalt Multifamily Investors I,

Inc., 542 F. Supp. 2d 277, 279 (S.D.N.Y. 2008)).

2

Reviewing the record in this case, the Court is unable to
conclude that the Magistrate Judge's order contained clear
error. Plaintiff is required to truthfully and accurately
answer the Magistrate Judge's questions regarding Plaintiff's
claim of indigency. The answer he provided to the Magistrate
Judge was evasive and unhelpful. Therefore, the Court is unable
to find any error in that decision. Accordingly, Plaintiff's
appeal is DENIED.
However, the Court will provide Plaintiff with a final
opportunity to truthfully and accurately answer the Magistrate
Judge's question concerning anticipated future income.
Therefore, Plaintiff shall have twenty days from the date of
this order to submit an appropriate answer as to whether he
anticipates receiving any income within the next year. The
Plaintiff is WARNED that should he continue to provide evasive
and frivolous answers to these very straightforward questions,
he is very likely to find himself required to pay the full
filing fee.

g—" day of March 2014.

SO ORDERED this ?

WILLIAM T. MOORE, JR.
41
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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