Pitts et al v. United States Housing and Urban Development et al

Filing 5

ORDER denying 4 Motion for Reconsideration/Modification, or in the Alternative, Notice of Appeal re 2 Order on Motion for Leave to Proceed in forma pauperis. Signed by Senior Judge W. Earl Britt on 7/14/2011. (Marsh, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO: 5:11-CV-00223-BR

ALAN PITTS,
SENECA NICHOLSON,
Plaintiffs,
v.
UNITED STATES HOUSING AND URBAN
DEVELOPMENT, et al.,
Defendants.

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ORDER

This matter is before the court on plaintiffs’ 21 June 2011 “Motion to Modify Order of
the Magistrate Judge Determining that the Plaintiffs W[]ere Capable of Prepaying Filing Cost
Within the 30 Day Period Prescribed by Lo[c]al Rule or Alternatively, Appeal of Such Order.”
The court construes this filing as a motion for review of and objections to Magistrate Judge
David Daniel’s 17 May 2011 order denying plaintiffs’ application to proceed in forma pauperis.
Pursuant to 28 U.S.C. § 636(b)(1)(A), the undersigned may designate a magistrate judge
to determine any pretrial matter that is not dispositive of a party’s claim or defense, such as an
application to proceed in forma pauperis. If a party desires for the district judge to review a
magistrate judge’s ruling on such a matter, the party must file objections to the order. Fed. R.
Civ. P. 72(a). The court will only modify or set aside any part of the order that is clearly
erroneous or contrary to law. Id.; see also 28 U.S.C. § 636(b)(1)(A). “A factual finding is
clearly erroneous when [the court is] ‘left with the definite and firm conviction that a mistake has
been committed.’” TFWS, Inc. v. Franchot, 572 F.3d 186, 196 (4th Cir. 2009) (citation omitted).
Under the clearly erroneous standard, the reviewing court is not to

ask whether the finding is the best or only conclusion permissible
based on the evidence. Nor is it to substitute its own conclusions
for that of the magistrate judge. Rather, the court is only required
to determine whether the magistrate judge's findings are reasonable
and supported by the evidence. “It is not the function of objections
to discovery rulings to allow wholesale relitigation of issues
resolved by the magistrate judge.”
Int’l Ass’n of Machinists & Aerospace Workers v. Wener-Masuda, 390 F. Supp. 2d 479, 486 (D.
Md. 2005) (citations omitted).
In the instant motion, plaintiffs contend that they should not be required to pay the filing
cost because they have no income; are unable to access credit despite having real property
valued at approximately $300,000; are the parents of an eight year old child; have no
transportation or land line telephone or internet service; and because plaintiff Pitts is unable to
pay for his medications, among other reasons. Based on the sworn application plaintiffs filed,
Judge Daniel concluded that
[a]lthough Plaintiffs are currently unemployed, their application
indicates that their combined monthly income exceeds their
monthly expenses by a minimal amount. In addition, Plaintiffs
have indicated that they own unencumbered real estate valued at
over $300,000. Accordingly, Plaintiffs have failed to demonstrate
that payment of the required court costs would deprive them of the
"necessities of life" as required by Adkins[ v. E.I. DuPont de
Nemours & Co., 335 U.S. 331, 339 (1948)].
These findings and conclusion are neither contrary to law nor clearly erroneous.
Plaintiffs’ objections are OVERRULED, and the motion is DENIED. Plaintiffs have 20
days from the date of this order to pay the appropriate civil filing fee. If they do not do so within

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this time, the Clerk is DIRECTED to close this case.
This 14 July 2011.

__________________________________
W. Earl Britt
Senior U.S. District Judge

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