HUDGINS v. COLVIN
Filing
3
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 08/28/2015. IT IS ORDERED that Plaintiff's Application to Proceed IFP 2 is DENIED. Plaintiff shall pay the filing fee by November 2, 2015. Failure by Plaintiff to comply with this Order shall result in the dismissal without prejudice of this action. (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARTIN J. HUDGINS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
1:15CV533
MEMORANDUM OPINION AND ORDER
This case comes before the Court on Plaintiff’s Application
for Leave to Proceed In Forma Pauperis (“IFP”) (Docket Entry 2),
filed in conjunction with a Complaint (Docket Entry 1).
For the
reasons that follow, the instant Application will be denied.
I. Magistrate Judge Authority in this Context
For cases proceeding in a United States District Court:
A judge may designate a magistrate judge to hear and
determine any pretrial matter pending before the court,
except a motion for injunctive relief, for judgment on
the pleadings, for summary judgment, to dismiss or quash
an indictment or information made by the defendant, to
suppress evidence in a criminal case, to dismiss or to
permit maintenance of a class action, to dismiss for
failure to state a claim upon which relief can be
granted, and to involuntarily dismiss an action. A judge
of the court may reconsider any pretrial matter under
this subparagraph (A) where it has been shown that the
magistrate judge’s order is clearly erroneous or contrary
to law.
28 U.S.C. § 636(b)(1)(A) (emphasis added).1
1 Absent consent of the parties, see 28 U.S.C. § 636(c)(1), as
to the eight pretrial matters specified in Section 636(b)(1)(A) (as
(continued...)
The United States Court of Appeals for the Fourth Circuit has
construed the foregoing statutory language as follows:
“Under 28
U.S.C. § 636(b)(1)(A) a judge may have a magistrate decide any
‘pretrial
matter’
exceptions
are
‘dispositive.’”
except
motions
certain
which
specified
Congress
motions.
considered
These
to
be
Aluminum Co. of Am., Badin Works, Badin, N.C. v.
United States Envtl. Prot. Agency, 663 F.2d 499, 501 (4th Cir.
1981) (emphasis added) (citing House Report No. 94-1609, P.L.
94-577, reprinted at U.S. Code Cong. & Ad. News 6162 (1976)).2
By
1(...continued)
well as certain collateral filings by prisoners) a magistrate judge
only may issue a recommended ruling. See 28 U.S.C. § 636(b)(1)(B)
(“[A] judge may also designate a magistrate judge to conduct
hearings, including evidentiary hearings, and to submit to a judge
of the court proposed findings of fact and recommendations for the
disposition, by a judge of the court, of any motion excepted in
subparagraph (A), of applications for posttrial relief made by
individuals convicted of criminal offenses and of prisoner
petitions challenging conditions of confinement.”).
2 By explaining that the eight motions listed in Section
636(b)(1)(A) constitute the pretrial matters “which Congress
considered to be ‘dispositive,’” Aluminum Co. of Am., 663 F.2d at
501, the Fourth Circuit harmonized Section 636(b)(1) with Federal
Rule of Civil Procedure 72, which provides that:
1) “[w]hen a
pretrial matter not dispositive of a party’s claim or defense is
referred to a magistrate judge to hear and decide, the magistrate
judge must promptly conduct the required proceedings and, when
appropriate, issue a written order stating the decision” after
which “[t]he district judge in the case must consider timely
objections and modify or set aside any part of the order that is
clearly erroneous or is contrary to law,” Fed. R. Civ. P. 72(a)
(emphasis added); and 2) “[a] magistrate judge must promptly
conduct the required proceedings when assigned, without the
parties’ consent, to hear a pretrial matter dispositive of a claim
or defense” and “must enter a recommended disposition,” as to which
“[t]he district judge must determine de novo any part of the
(continued...)
2
published decision, the Fourth Circuit thus has stated that,
consistent with the plain language of Section 636(b)(1)(A), a
magistrate judge may decide any pretrial matter except the eight
motions Congress specified in said statutory provision. The Fourth
Circuit has since reiterated that view, albeit by unpublished
opinion.
Batiste v. Catoe, 27 F. App’x 158, 159 (4th Cir. 2001)
(holding that magistrate judge’s ruling on pretrial motion not
listed in Section 636(b)(1)(A) constituted “nondispositive” order,
and citing in support Maisonville v. F2 Am., 902 F.2d 746, 747-48
(9th Cir. 1990), and determination therein that “‘dispositive’
motions are limited to the listing contained in § 636(b)(1)(A)”).
District judges in the Fourth Circuit have followed the
reasoning of Aluminum Co. of Am. and Batiste.
For example, in
Wachovia Bank, N.A. v. Deutsche Bank Trust Co. Ams., 397 F. Supp.
2d 698 (W.D.N.C. 2005), the court declined to review de novo a
magistrate judge’s order on a motion to remand, observing that:
“[T]he language of § 636(b)(1)(A) is exceedingly clear that a
2(...continued)
magistrate judge’s disposition that has been properly objected to,”
Fed. R. Civ. P. 72(b) (emphasis added).
This harmonization
resolves what a judge in an adjacent district described as “a
disconnect between Rule 72 and the Magistrates Act, 28 U.S.C. §
636(b)” arising from the fact that “[t]he former permits a
magistrate judge to decide any motion which is not ‘dispositive of
a party’s claim or defense,’ but the latter appears written to
allow magistrate judges to ‘hear and determine any pretrial matter
pending before the court,’ minus eight enumerated exceptions.”
Stonecrest Partners, LLC v. Bank of Hampton Rds., 770 F. Supp. 2d
778, 783 n.3 (E.D.N.C. 2011) (emphasis in original).
3
magistrate judge may ‘hear and determine any pretrial matter
pending before the court, except’ a very specific list of eight
matters.
Congress would be hard-pressed to use language more
clearly indicating its intent to create an exhaustive list than
‘any . . . except.’”
Id. at 701 (ellipsis and emphasis in
original) (citations omitted); see also Everett v. Cherry, 671 F.
Supp.
2d
819,
enumerates
820
those
n.4
(E.D.
pre-trial
Va.
2009)
matters
that,
(“Section
if
636(b)(1)
referred
to
a
magistrate judge, must be reviewed de novo by a district judge upon
objection.
The court will not make the unprincipled decision to
rewrite the statute, adding ‘motions to amend’ to those pre-trial
matters, for that is the province of Congress.”), aff’d sub nom.,
Everett v. Prison Health Servs., 412 F. App’x 604, 605 & n.2 (4th
Cir. 2011) (“[The plaintiff] moved for leave to amend her complaint
. . . to add [a defendant and] a state-law claim of medical
malpractice
against
[that
defendant].
magistrate judge denied [the] motion.
After
a
hearing,
the
[The plaintiff] timely
objected, thereby preserving the issue for review
. . . .
[T]he
district court could not modify or set aside any portion of the
magistrate judge’s order unless the magistrate judge’s decision was
‘clearly erroneous or contrary to law.’
Fed. R. Civ. P. 72(a); 28
U.S.C.A. § 636(b)(1)(A) (2006 & Supp. 2010).”).3
3 Of note, the Everett Court affirmed the district judge’s
application of clearly erroneous review to the magistrate judge’s
(continued...)
4
Recently, however, the Fourth Circuit issued an unpublished
decision holding that a “magistrate judge, proceeding under 28
U.S.C. § 636(b) (2012), lacked authority to issue an order denying
[an application for] leave to proceed IFP.”
Hunter v. Roventini,
Nos. 14-2259, 15-1019, 2015 WL 3483102, at *1 (4th Cir. June 3,
2015) (unpublished). In doing so, the Hunter Court did not address
Aluminum Co. of Am. or the plain language of Section 636(b)(1)(A);
instead,
it
only
cited
and
parenthetically
quoted
Woods
v.
Dahlberg, 894 F.2d 187, 187 (6th Cir. 1990), for the proposition
that “‘denial of such a motion is the functional equivalent of an
involuntary dismissal and is outside the scope of a magistrate’s
authority.’”
Hunter, 2015 WL 3483102, at *1.4
The undersigned
3(...continued)
order denying the motion to amend without regard to whether that
denial was dispositive as to the plaintiff’s claim against the
putative defendant.
See Everett, 412 F. App’x at 605 n.2.
Moreover, as the undersigned Magistrate Judge previously has
observed, “the circuit courts that have spoken have found that
magistrate judges may enter orders [on motions to amend],
notwithstanding the theoretical ‘dispositive’ nature of such
rulings (and have cited the plain language of Section 636(b)(1) in
support of that position).”
Thomas v. North Carolina, No.
1:10CV226, 2010 WL 2176075, at *8 (M.D.N.C. May 21, 2010)
(unpublished) (citing, inter alia, Hall v. Norfolk S. Ry. Co., 469
F.3d 590, 595 (7th Cir. 2006)).
4 The Sixth Circuit did not cite any legal support or offer
any reasoned analysis for its above-quoted, single-line conclusion.
See Woods, 894 F.2d at 187.
Moreover, in so concluding, it
dramatically broke from the explicit terms of Section 636(b)(1),
which addresses the authority of magistrate judges to rule (or to
recommend rulings) on motions without regard to the outcome of the
ruling (or recommended ruling), in favor of an approach that makes
the outcome of the ruling (or recommended ruling) determinative of
(continued...)
5
Magistrate
Judge
recognizes
that
unpublished
Fourth
Circuit
decisions constitute significant persuasive authority; however,
given the published ruling in Aluminum Co. of Am.,5 the plain
language of Section 636(b)(1)(A), and the persuasive authority
(cited above and below), the undersigned Magistrate Judge will
enter an order, rather than a recommendation, in this instance.
As
an
initial
matter,
an
application
to
proceed
constitutes a “pretrial matter,” 28 U.S.C. § 636(b)(1)(A).
IFP
See,
e.g., Smith ex rel. K.M.J. Int’l, Inc. v. United States Gov’t, No.
1:10CV673,
2013
WL
5462387,
at
*1
(M.D.N.C.
Feb.
19,
2013)
(unpublished) (Osteen, Jr., J.) (“[T]he order of the Magistrate
Judge relates to a pretrial matter (IFP status).”); Central States,
Se. & Sw. Area Pension Fund v. Smeltzer Enters., Nos. 08-50180, 0850852,
2009
WL
3672120,
at
*2
(E.D.
Mich.
Oct.
30,
2009)
4(...continued)
such authority. See id. at 188 (“A district judge is free to refer
a motion for pauper status to a magistrate and if the decision is
to grant such a motion, the magistrate may enter such an order. If
the decision is to deny, however, the magistrate must make such a
recommendation to the district judge who will then take final
action.”). By such reasoning, a magistrate judge could rule on a
summary judgment motion, so long as the ruling denied summary
judgment, despite Congress clearly specifying otherwise.
5 As a published decision, Aluminum Co. of Am. must control
over Hunter, an unpublished decision. See, e.g., United States v.
Ruhe, 191 F.3d 376, 391-92 (4th Cir. 1999) (“The district court
relied on [an unpublished Fourth Circuit opinion] to support its
decision. . . . [U]npublished opinions are not binding precedent
. . . . [T]o the extent that [the unpublished decision cited by
the district court] is inconsistent with [a published Fourth
Circuit decision], we are controlled by the published decision.”).
6
(unpublished) (listing “determination of in forma pauperis status”
as example of “pretrial matter”); Scherer v. United States, No. 012428-JWL,
2001
WL
1516736,
at
*1
(D.
Kan.
Nov.
7,
2001)
(unpublished) (describing “denial of in forma pauperis status” as
order on “pretrial matters”).
Further, Section 636(b)(1)(A)’s
“specifically enumerated list of motions [excluded from disposition
by a magistrate judge] does not include a [m]otion for [l]eave to
[p]roceed
[i]n
[f]orma
[p]auperis.”
Seals
v.
Seals,
No.
2:14CV2058-JPM-CGC, 2014 WL 3592037, at *4 (W.D. Tenn. July 21,
2014) (unpublished); see also Talley v. Jackson, No. C15-855-RSM,
2015 WL 3796339, at *2 (W.D. Wash. June 18, 2015) (unpublished)
(“Congress has explicitly provided magistrate judges the authority
to hear and determine certain pretrial matters in actions pending
before the district court. See 28 U.S.C. [§] 636(a)-(b).
This
authority extends to ruling upon applications to proceed in forma
pauperis . . . .”); Smith, 2013 WL 5462387, at *1 (“[A]n order
[relating to IFP status] may be reconsidered ‘only where it has
been shown that the magistrate judge’s order is clearly erroneous
or contrary to law.’
28 U.S.C. § 636.”).
In other words, the plain language of Section 636(b)(1)(A)
compels the conclusion that magistrate judges may rule on IFP
applications, and courts “are not permitted to ignore [a] statute’s
plain language,” United States v. Stitt, 552 F.3d 345, 353 (4th
Cir. 2008); see also Matter of Baby “K”, 16 F.3d 590, 596 (4th Cir.
7
1994) (“[W]e cannot ignore the plain language of the statute
because to do so would transcend our judicial function.” (internal
quotation marks omitted)); Everett, 671 F. Supp. 2d at 820 n.4
(“Section 636(b)(1) enumerates those pre-trial matters that, if
referred to a magistrate judge, must be reviewed de novo by a
district judge upon objection.
unprincipled
decision
to
The court will not make the
rewrite
the
statute,
adding
[other
motions] to those pre-trial matters, for that is the province of
Congress.”).
Finally, even if the list of motions in Section
636(b)(1)(A) somehow implicitly encompassed any pretrial matter
somehow deemed dispositive, a magistrate judge may rule on an IFP
application because such a ruling does not dispose of the action.
See Poche v. Butler, Civil Action No. 07-3506, 2007 WL 2695350, at
*1 n.1 (E.D. La. Sept. 11, 2007) (unpublished) (“[The] order
[denying
IFP
status]
did
not
prevent
[the
p]etitioner
from
proceeding by a means other than by in forma pauperis . . . .”);
see also Yepes v. Hininger, No. CV514-085, 2015 WL 1546869, at *3
(S.D.
Ga.
Apr.
6,
2015)
(unpublished)
(“[T]he
[m]agistrate
[j]udge’s [o]rder on [the p]laintiff’s [m]otion to [p]roceed in
[f]orma [p]auperis squarely falls within his authority to issue
orders on nondispositive pretrial matters.” (emphasis added));
Arvie v. Tanner, Civil Action No. 12-1638, 2012 WL 3597127, at *1
(E.D. La. Aug. 21, 2012) (unpublished) (identifying denial of
“motion to proceed in forma pauperis” as “non-dispositive”), aff’d,
8
518 F. App’x 304 (5th Cir.), cert. denied,
U.S.
, 134 S.
Ct. 689 (2013); Seaberry v. Stalder, Civil Action No. 05-1960-P,
2006 WL 1635707, at *1 (W.D. La. June 13, 2006) (“[The denial of
IFP status] is an [o]rder from the [m]agistrate [j]udge on a nondispositive matter . . . .” (emphasis added)).6
In sum, the undersigned Magistrate Judge will enter an order
as to Plaintiff’s instant Application, “[b]ecause [even the denial
of IFP status will] not prevent [Plaintiff] from proceeding by a
means other than by in forma pauperis, and because a motion for
permission to proceed in forma pauperis is a pretrial motion and is
6 Notably, in Hunter, the magistrate judge did not simply deny
the plaintiff IFP status and order payment of the filing fee, but
also ruled that, “[s]hould [the p]laintiff fail to do so, the clerk
shall redesignate this action as a miscellaneous case and
administratively close the matter without further order of the
court . . . .”
Hunter v. Roventini, No. 5:14CV733FL, at 2
(E.D.N.C. Nov. 4, 2014) (unpublished), aff’d, Text Order (E.D.N.C.
Nov. 24, 2014), vacated and remanded, 2015 WL 3483102.
The
magistrate judge there thus entered an order providing for
dismissal of the action. Contrastingly, in this Court, magistrate
judges do not enter any such orders when they deny IFP status and
require payment of the filing fee; instead, in such cases: 1) the
magistrate judge’s order would merely warn the plaintiff that noncompliance with the payment order will result in the dismissal
without prejudice of the action; and 2) if/when such noncompliance
occurs, the magistrate judge then issues a separate recommendation
of dismissal for failure to comply with a court order.
Those
distinctions provide a further basis to attribute less persuasive
force to the Fourth Circuit’s unpublished decision in Hunter in
determining whether the undersigned Magistrate Judge should enter
an order regarding Plaintiff’s instant Application.
9
not enumerated in the authorizing statute as a dispositive motion,”
Poche, 2007 WL 2695350, at *1 n.1.7
II. Eligibility for IFP Status
“In assessing an application to proceed in forma pauperis, a
court may consider the resources that the applicant has or ‘can
get’ from those who ordinarily provide the applicant with the
‘necessities of life,’ such as ‘from a spouse, parent, adult
sibling or other next friend.’”
Fridman v. City of N.Y., 195 F.
Supp. 2d 534, 537 (S.D.N.Y. 2002) (quoting Williams v. Spencer, 455
F. Supp. 205, 208–09 (D. Md. 1978)); accord Lowery v. Astrue, Civ.
No. 10-2103, 2010 WL 3037023, at *1 (W.D. Ark. Aug. 2, 2010)
(unpublished); Assaad-Faltas v. University of S.C., 971 F. Supp.
985, 990-91 (D.S.C. 1997) (citing Monti v. McKeon, 600 F. Supp.
112, 113-14 (D.Conn. 1984), aff’d, No. 84-7759, 788 F.2d 1 (2d Cir.
Dec. 2, 1985) (table)).
The instant Application reflects that one
family member provides Plaintiff with a residence and another
family member pays Plaintiff’s living expenses (not covered by
governmental assistance).
(See Docket Entry 2 at 2 (“My sister
7 The distinction between order and recommendation may make
little, if any, practical difference in this context; any review by
the assigned United States District Judge of the undersigned
Magistrate Judge’s legal conclusion regarding the eligibility of
Plaintiff for IFP status likely would take the same shape whether
conducted under the “contrary to law” provision of Section
636(b)(1)(A) (applicable to non-excepted pretrial rulings) or under
the de novo standard that governs review of recommendations under
Section 636(b)(1)(B). See, e.g., Haines v. Liggett Grp. Inc., 975
F.2d 81, 91 (3d Cir. 1992) (“[T]he phrase ‘contrary to law’
indicates plenary review as to matters of law.”).
10
owns the house I live in and my brother pays all my living
expenses.”).)
In the absence of any showing to the contrary, the
Court concludes that Plaintiff could obtain from his family members
the funds necessary to pay the relatively modest filing fee and
other costs excused by pauper status.
III. Conclusion
Plaintiff has not shown entitlement to proceed as a pauper.
IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave
to Proceed In Forma Pauperis (Docket Entry 2) is DENIED. Plaintiff
shall pay the filing fee by November 2, 2015.
Failure by Plaintiff
to comply with this Order will result in the dismissal without
prejudice of this action.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 28, 2015
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?