Gardner v. Kelly

Filing 3

ORDER directing Gardner within 14 days to disclose to the Court the following information. (1) What he spends each month for basic living expenses such asfood, clothing, shelter, and utilities, and the dollar value ofany public or private assistance he may receive;(2) Where he gets the money to pay for those expenses (includeall off-the-books income, whether in cash or in-kind);(3) Whether he owns any means of transportation and, if he doesnot, whether he has regular access to same, as owned bya nother (including a rental company);(4) Whether he possesses a cellular telephone, TV set, and anyhome electronics equipment (include estimated value andrelated carrying expenses, such as carrier and subscriptionfees);(5) Whether he is the account ow ner, or has signature power, asto any accounts with a bank or other financial institution;(6) Whether he anticipates any future income within the nextyear; The Clerk is DIRECTED to serve with this Order four copies (one for each case) of a blank IFP form for Gardners convenience. ( Compliance due by 6/17/2016.) Signed by Magistrate Judge G. R. Smith on 6/13/16. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
EDWARD ALLEN GARDNER,
Plaintiff,
v.

Case No.

GREG PARKER et al.,

CV416-138
CV416-139
CV416-140
CV416-141

Defendants.

ORDER
Proceeding pro se , Edward Gardner has filed four cases 1 against a
gas station and three homeless shelters alleging that each establishment
violated the Americans with Disabilities Act (ADA) by denying him
access because of his service dog. See, e.g. , CV416-138, doc. 1 at 5.
Gardner, who lists a non-prison address, also seeks leave to file his
complaints in forma pauperis (“IFP”). See, e.g. , CV416-138, doc. 2. Each
of his four cases contains different factual allegations, but each indigency
affidavit suffers the same deficiencies. He claims $733 in monthly
supplemental security income, see, e.g. , CV416-138, doc. 1 at 9, but
1

Gardner v. Parker, CV416-138; Gardner v. Kelly , CV416-139; Gardner v. Pryor,
CV416-140; Gardner v. Allison , CV416-141.

otherwise provides no information. The affidavit itself is blank, missing
the second page, and lacks a signature.

See, e.g. , CV416-138, doc. 2.

Wary of such indigency claims and cognizant of how easily one may
consume a public resource with no financial skin in the game, 2 this Court
demands supplemental information from dubious IFP movants. See, e.g. ,

Kareem v. Home Source Rental , 986 F. Supp. 2d 1345, 1346-48 (S.D. Ga.
2013); Robbins v. Universal Music Group , 2013 WL 1146865 at * 1 (S.D.
Ga. Mar. 19, 2013). 3

2

“[A] litigant whose filing fees and court costs are assumed by the public . . . lacks
an economic incentive to refrain from filing frivolous, malicious, or repetitive
lawsuits.” Neitzke v. Williams , 490 U.S. 319, 324 (1989). Courts thus deploy
appropriate scrutiny. See Hobby v. Beneficial Mortg. Co. of Va ., 2005 WL 5409003 at
*7 (E.D. Va. June 3, 2005) (debtor denied IFP status where, although she was unable
to find employment as a substitute teacher, she had not shown she is unable to work
and earn income in other ways); In re Fromal, 151 B.R. 733, 735 (E.D. Va. 1993)
(denying IFP application where debtor was licensed attorney and accountant and she
offered no reason why she cannot find employment), cited in In re Zow , 2013 WL
1405533 at * 2 (Bkrtcy. S.D. Ga. Mar. 4, 2013) (denying IFP to “highly educated”
bankruptcy debtor who, inter alia, had “not shown he is physically unable to work or
earn income in other ways.”); Nixon v. United Parcel Serv. , 2013 WL 1364107 at *1-2
(M.D. Ga. Apr. 3, 2013) (court examined income and expenses on long-form IFP
affidavit and determined that plaintiff in fact had the ability to pay the court’s filing
fee).
3

See also Lister v. Dep’t of Treasury , 408 F.3d 1309, 1313 (10th Cir. 2005) (court did
not abuse its discretion by denying IFP status to Social Security benefits claimant
seeking judicial review of Commissioner's benefits denial; claimant, after having been
specifically instructed on how to establish IFP status, failed to fill out proper forms or
otherwise provide court with requisite financial information); Mullins v. Barnhart,
2010 WL 1643581 at * 1 (D. Kan. Mar, 30, 2010) (denying, after scrutinizing IFP
affidavit’s financial data, leave to proceed IFP on financial ability grounds).

2

Given the totality of the circumstances, it will do likewise here. 4
Therefore, within 14 days from the date this Order is filed, Gardner shall
disclose to the Court the following information:
(1)

What he spends each month for basic living expenses such as
food, clothing, shelter, and utilities, and the dollar value of
any public or private assistance he may receive;

(2)

Where he gets the money to pay for those expenses (include
all “off-the-books” income, whether in cash or in-kind);

(3)

Whether he owns any means of transportation and, if he does
not, whether he has regular access to same, as owned by
another (including a rental company);

(4)

Whether he possesses a cellular telephone, TV set, and any
home electronics equipment (include estimated value and
related carrying expenses, such as carrier and subscription
fees);

(5)

Whether he is the account owner, or has signature power, as
to any accounts with a bank or other financial institution;

(6) Whether he anticipates any future income within the next
year;
4

Two important points must be underscored. First, proceeding IFP is a privilege,
not an entitlement. See Rowland v. Cal. Men's Colony, Unit II Men's Advisory
Council , 506 U.S. 194, 198 (1993). And second, courts have discretion to afford
litigants IFP status; it’s not automatic. 28 U.S.C. § 1915(a)(1) (courts “ may authorize
the commencement” of IFP actions); Denton v. Hernandez , 504 U.S. 25, 31 (1992); see
also Marceaux v. Democratic Party, 79 F. App’x 185, 186 (6th Cir. 2003) (no abuse of
discretion when court determined plaintiff could afford to pay the filing fee without
undue hardship because he has no room and board expenses, owns a car, and spends
the $250.00 earned each month selling plasma on completely discretionary items);
Lee v. McDonald's Corp ., 231 F.3d 456, 458 (8th Cir. 2000) (the decision of whether to
grant or deny IFP status under 28 U.S.C. § 1915 is discretionary).

(7) A list of any other cases showing an indigency-based, filing fee
reduction or waiver granted by any other court (include the
full case name, case number and the name of the court
granting same).
Answering these points will better illuminate Gardner’s true
financial condition. In that regard, he must declare the facts he pleads to
be true under penalty of perjury. If he does not use a preprinted IFP
form to respond (hence, if he uses a blank sheet of paper), he must insert
this above his signature: “I declare under penalty of perjury under the
laws of the United States of America that the foregoing is true and
correct. Executed on (date).” 28 U.S.C. § 1746(1). The Clerk is

DIRECTED to serve with this Order four copies (one for each case) of a
blank IFP form for Gardner’s convenience. Failure to comply with this
directive will result in a recommendation of dismissal.

See Kareem v.

Home Source Rental , 2014 WL 24347 at * 1 (S.D. Ga. Jan. 2, 2014).
SO ORDERED, this 13th day of June, 2016.

UNITED STATES MAGISTRATE JUDGE
SOUThER}'T DISTRICT OF GEORGIA

4