Burton et al v. Santander Consumer USA et al

Filing 9

WRITTEN Opinion entered by the Honorable Marvin E. Aspen on 8/24/2011: Presently before us is Alicia Burton's (Ms. Burton) motion to proceed in forma pauperis with her seven-count complaint against Santander Consumer USA, Drive Financial Service s, and Bob Watson Chevrolet, Inc. (Dkt. No. 7 ) Because Ms. Burton has satisfied the criteria to proceed in forma pauperis, her motion 7 is granted. As of now, however, we are still not inclined to appoint the Burtons an attorney. Nothing in th e record indicates that the Burtons have reasonably exhausted their search for private counsel. Zarnes v. Rhodes, 64 F.3d 285, 288. The Clerk of the Court is directed to issue summons and complaint to the U.S. Marshals Service for service on defendant(s). A status hearing is set for 10/13/11 at 10:30 a.m., in Courtroom 2525. Mailed notice (For further details see Written Opinion) (nf, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Marvin Aspen

CASE NUMBER

11 C 4320

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

8/24/2011

Burton vs. Santander Consumer USA, et al

DOCKET ENTRY TEXT

Presently before us is Alicia Burton’s (“Ms. Burton”) motion to proceed in forma pauperis with her seven-count
complaint against Santander Consumer USA, Drive Financial Services, and Bob Watson Chevrolet, Inc. (Dkt. No. 7.)
Because Ms. Burton has satisfied the criteria to proceed in forma pauperis, her motion (7) is granted. As of now,
however, we are still not inclined to appoint the Burtons an attorney. Nothing in the record indicates that the Burtons
have reasonably exhausted their search for private counsel. Zarnes v. Rhodes, 64 F.3d 285, 288. The Clerk of the
Court is directed to issue summons and complaint to the U.S. Marshal’s Service for service on defendant(s). A status
hearing is set for 10/13/11 at 10:30 a.m., in Courtroom 2525.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
(Reserved for use by the Court)

ORDER
Presently before us is Alicia Burton’s (“Ms. Burton”) motion to proceed in forma pauperis with her
seven-count complaint against Santander Consumer USA, Drive Financial Services, and Bob Watson Chevrolet,
Inc. (Dkt. No. 7.) Alicia Burton is a co-plaintiff with her husband, Anthony Burton (“Mr. Burton”), whose prior
application to proceed in forma pauperis we denied on July 11, 2011. (Dkt. Nos. 4 & 8.) While Mr. Burton’s
application was pending, Ms. Burton filed the application now before us. We denied Mr. Burton’s application
because of several important omissions, which have been remedied in Ms. Burton’s application. Because the
Burtons are indigent and their claim is not frivolous, Ms. Burton’s motion to proceed in forma pauperis is
granted.
Before granting leave to file in forma pauperis, we must first determine whether Plaintiff is indigent. 28
U.S.C. § 1915(a)(1). We then review her complaint and dismiss it if we find that: (1) it is frivolous or malicious;
(2) it fails to state a claim under Rule 12(b)(6); or (3) it seeks damages from a defendant who is immune from
such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). Pursuant to Rule 12(b)(6), we may dismiss a complaint if it
fails to give the defendant “fair notice of what the . . . claim is and the grounds upon which it rests,” or if it fails
to “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964
(2007).
In Ms. Burton’s in forma pauperis application, she indicates that she is married with one dependent child,
Arkier Burton. (Dkt. No. 7 at 2–3.) In Mr. Burton’s prior application, he indicated that in addition to Arkier
Burton he has another child, Dwayne Smith, who he also claims as a dependent. (Dkt. No. 4 at 3.) In the
complaint, the Burtons are described as “a family of five.” (Dkt. No. 1 ¶ 27.) While these discrepancies may
be explainable, they do complicate the indigency determination. The federal poverty guidelines establish
different thresholds for indigency based on family size. The threshold for a family of three living in the
continental United States is $18,530, whereas the threshold for a family of four is $22,350. See 2011 Health and

11C4320 Burton vs. Santander Consumer USA, et al

Page 1 of 2

STATEMENT
Human Services Poverty Guidelines, available at http://aspe.hhs.gov/poverty/11poverty.shtml. According to
her application, Ms. Burton earns a monthly income of $1,800, which amounts to $21,600 annually. (Dkt. No.
7 at 1.) Mr. Burton is not employed and currently receives $200 per month in food stamps. (Id. at 2.) If we
count the Burtons as a family of three, in accordance with Ms. Burton’s application, then the Burtons would fall
above the applicable poverty guideline. If we count her husband’s other dependent child, Dwayne Smith, as part
of the Burton household, then the Burtons are below the applicable poverty guideline. At this point, we are
willing to give Ms. Burton the benefit of the doubt. We do so in part based on the fact that her husband receives
$200 in food stamps per month, indicating that the Burtons are “unable to pay” the filing fee within the meaning
of the in forma pauperis statute. 28 U.S.C. § 1915 (a)(1). (Dkt. No. 4 at 2.) Thus, the Burtons are indigent.
The Burtons’ complaint is also sufficient for our present purposes. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
The complaint alleges in detail the circumstances under which the Burtons claim they were misled in the course
of financing and purchasing an automobile in violation of federal and state law. (Dkt. No. 1 ¶¶ 1–60.) Thus, the
allegations provide adequate notice to the defendants of the claims against them. Twombly, 127 S. Ct. at 1964.
Because Ms. Burton has satisfied the criteria to proceed in forma pauperis, her motion is granted. As of
now, however, we are still not inclined to appoint the Burtons an attorney. Nothing in the record indicates that
the Burtons have reasonably exhausted their search for private counsel. Zarnes v. Rhodes, 64 F.3d 285, 288.

11C4320 Burton vs. Santander Consumer USA, et al

Page 2 of 2