Reynolds v. Cox Cable et al

Filing 7

ORDER-Plaintiff Community Telecast, Inc.s motion to proceed in forma pauperis is denied with prejudice. Plaintiff Harold Reynoldss motion to proceed in forma pauperis is denied without prejudice. Ordered by Senior Judge Lyle E. Strom. (MKR)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
HAROLD REYNOLDS,
COMMUNITY TELECAST, INC.,

)
)
)
Plaintiffs,
)
)
v.
)
)
COX CABLE, COX COMMUNICATIONS,)
JOHN DOES 1-10,
)
)
Defendants.
)
______________________________)

8:13CV86

ORDER

This matter is before the Court on the motion of
plaintiffs to proceed in forma pauperis under 28 U.S.C. § 1915
(Filing No. 2).

Under the statute the Court may authorize

commencement of a suit “without prepayment of fees . . . by a
person who submits an affidavit that includes a statement of all
assets such prisoner possesses that the person is unable to pay
such fees or give security therefor.”

28 U.S.C. § 1915(a)(1).

The Court must resolve two basic questions before considering the
merits of plaintiffs’ motion: (1) whether the statute’s reference
to “such prisoner” excludes non-prisoners from its coverage; and
(2) whether plaintiff Community Telecast, Inc. is entitled to
proceed in forma pauperis as a “person” under the statute.
I. Non-Prisoners
Three federal circuit courts and the Court of Federal
Claims have found that the legislative history and a reading of
the statute as a whole indicate that prisoners and non-prisoners

alike are entitled to petition a federal court to proceed in
forma pauperis under § 1915.

Martinez v. Kristi Kleaners, Inc.,

364 F.3d 1305, 1306 n. 1 (11th Cir. 2004); Haynes v. Scott, 116
F.3d 137, 139 (5th Cir. 1997); Floyd v. U.S. Postal Serv., 105
F.3d 274, 275 (6th Cir. 1997); Hayes v. United States, 71 Fed.Cl.
366 (2006).

This Court finds the reasoning of those courts

persuasive and therefore finds that plaintiffs’ status as nonprisoners does not bar them from petitioning the Court.
II. “Person”
The Supreme Court has held unequivocally that the term
“person” in § 1915 refers only to natural persons.

Rowland v.

California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S.
194, 208-09 (1993).

Thus, while plaintiff Reynolds may be

permitted to proceed in forma pauperis as a “person” under the
statute, Community Telecast, Inc. cannot.

While Reynolds has the

option of pursuing any claims that accrue to him personally in a
suit independent of the corporation, if the parties choose to
continue the litigation together, Community Telecast must pay the
appropriate fees.
III. Merits of Reynolds’s Motion
In reviewing Reynold’s affidavit, the Court noted that
the plaintiff listed assets as “none” but also listed a monthly
mortgage payment which suggests that plaintiff is in possession
of an asset which has been used as security against a loan.

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Reynolds must resolve this apparent contradiction so that the
Court can make a determination based on a full and accurate
picture of his financial circumstances.
IT IS ORDERED:
1) Plaintiff Community Telecast, Inc.’s motion to
proceed in forma pauperis is denied with prejudice.
2) Plaintiff Harold Reynolds’s motion to proceed in
forma pauperis is denied without prejudice.
DATED this 28th day of March, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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