Chapman v. Colvin

Filing 6

ORDER vacating 4 Report and Recommendations. Therefore, within 14 days from the date this Order is filed, Chapman shall disclose to the Court the following information: (1) A true and correct statement of all income, Social Security benefits, or ot her government assistance she is now receiving;(2) What she spends each month for basic living expenses such asfood, clothing, shelter, and utilities, and the dollar value of anypublic or private assistance she may receive; (3) Where she gets the mon ey to pay for those expenses (includeall "off-the -books" income, whether in cash or in-kind);(4) Whether she owns any means of transportation and, if she does not, whether she has regular access to same, as owned byanother (including a ren tal company);(5) Whether she possesses a cellular telephone, TV set, and anyhome electronics equipment (include estimated value andrelated carrying expenses, such as carrier and subscription fees);(6) Whether she is the account owner, or has signatur e power, as to any accounts with a bank or other financial institution;(7) Whether she anticipates any future income within the nextyear;(8) A list of any other cases showing an indigency-based, filing fee reduction or waiver granted by any other cou rt (include the full case name, case number and the name of the court grantingsame); and(9) (8) The amount of any equity she has in any real property,including her present dwelling (the Court notes the HOA feesmentioned supra). Signed by Magistrate Judge G. R. Smith on 12/2/16. (wwp) Modified on 12/2/2016 (wwp).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JACQUELINE E. CHAPMAN,
Plaintiff,
V.

)

CV4 16-272

)

CAROLYN L. COLVIN, Acting
Commissioner of Social Security,

)

Defendant.

ORDER
On October 19, 2016, the Court ordered pro se plaintiff Jacqueline
Chapman to file an amended application to proceed in forma pauperis
(IFP). Doc. 3. When she failed to timely respond to that directive, the
Court recommended Chapman's complaint be dismissed for failure to
comply with a court order. Doc. 4. As plaintiff has since filed an
amended IFP application, doe. 5, the Court VACATES its Report and
Recommendation to dismiss the complaint without prejudice. However,
plaintiffs amended IFP application raises still more questions about
her ability to pay the filing fee.
In her initial application, Chapman declared that she receives a
combined $1,053 a month in pension and Social Security benefits, and

earns about $300 a month from her part-time job. Doc. 2. However, in
her new application she declares that she receives only $ 100-200 per
month from her part-time job, with monthly expenses of $200 for
homeowners' association fees (but nothing toward mortgage or rent),
$100 for transportation, and $100 for doctors' bills. Doe. 5 at 2. She
contributes $400 to supporting her son and has $300 in credit card debt.

Id. Her liabilities clearly exceed her dramatically reduced income per
the amended IFP application, but it is unclear why Chapman omitted
the $1,000 in Social Security and pension benefits in her second
application and why she is earning less from her part-time job.

Compare does. 2 and 5.
Wary of such indigency claims and cognizant of how easily one
may consume a public resource with no financial skin in the game,' this
Court demands supplemental information from dubious IFP movants.

1

"[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); Nixon v. United Parcel Seru., 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).
2

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). 2 Given the totality of the

circumstances, it will do likewise here. 3 Therefore, within 14 days from
the date this Order is filed, Chapman shall disclose to the Court the
following information:
(1)

A true and correct statement of all income, Social Security
benefits, or other government assistance she is now receiving;

(2)

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

(3)

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

(4)

Whether she owns any means of transportation and, if she

2

See also Lister v. Dept 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).

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).
3

does not, whether she has regular access to same, as owned by
another (including a rental company);
(5)

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

(6)

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

(7)

Whether she anticipates any future income within the next
year;

(8)

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); and

(9)

(8) The amount of any equity she has in any real property,
including her present dwelling (the Court notes the HOA fees
mentioned supra).
Answering these points will better illuminate plaintiffs true

financial condition. 4 The Clerk of Court is DIRECTED to include a

While a plaintiff need not be absolutely destitute in order to proceed IFP, Adkins v.
E.I. Dupont de Nemours, 335 U.S. 331, 339 (1948), the fact that financing her own
litigation may cause some difficulty is not sufficient to relieve a plaintiff of her
obligation to pay her own way where it is possible to do so without undue hardship.
Thomas v. Secretary of Dept of Veterans Affairs, 358 F. App'x 115, 116 (11th Cir.
2009) (the Court has wide discretion in ruling on IFP application, and should grant
the privilege "sparingly" in civil cases for damages).
When considering a motion filed pursuant to 28 U.S.C. § 1915(a), "[t]he only
determination to be made by the court. . . is whether the statements in the affidavit
satisfy the requirement of poverty." Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305,
1307 (11th Cir. 2004). The Court must compare the applicant's assets and liabilities
in order to determine whether she has satisfied the poverty requirement. Id. at 13074

blank IFP application (AO 240 (Rev. 01/09)) when serving her with this
Order. 5 Failure to comply with this directive will result in a
recommendation of dismissal. See Kareem, 2014 WL 24347 at * 1.

SO ORDERED, this 2nd day of December, 2016.

UMIED STAThS MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

08; Thomas, 358 F. App'x at 116 (district court abused its discretion by failing to
compare plaintiffs assets against her liabilities to determine whether she satisfied
the poverty requirement).
Plaintiff, who on that form will declare under penalty of perjury that her
representations are "true and correct," is reminded that lying under oath, be it live
or "on paper," is a criminally prosecutable offense. See United States v. Roberts, 308
F.3d 1147, 1155 (11th Cir. 2002) (defendant's falsely subscribing to statement in his
habeas petition that he had not previously filed a § 2255 motion was "material" for
purposes of perjury prosecution; statement fooled the clerk of the court into
accepting the "writ" for filing, and led the magistrate judge to consider its merits
until she discovered that the "writ" was a successive § 2255 motion in disguise);
United States u. Dickerson, CR608-36, doe. 1 (S.D. Ga. Dec. 11, 2008) (§ 2255 movant
indicted for perjury for knowingly lying in his motion seeking collateral relief from
his conviction); id., doe. 47 (guilty verdict); see also Colony Ins. Co. v. 9400 Abercorn,
LLC, 866 F. Supp. 2d 1376, 1378 ii. 2 (S.D. Ga. 2012).
5