Merida v. Nonnenmacher

Filing 6

ORDER adopting 5 Report and Recommendations; denying 2 Motion for Leave to Proceed in forma pauperis and directing the Plaintiff to pay the filing fee on or before 6/11/18. So Ordered by Chief Judge William E. Smith on 5/8/2018. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
JAMES MERIDA,
)
)
Plaintiff,
)
)
v.
)
C.A. No. 17-465 WES
)
DEREK NONNENMACHER,
)
)
Defendant.
)
___________________________________)
ORDER
WILLIAM E. SMITH, Chief Judge.
In a Report and Recommendation (“R&R”) (ECF No. 5), Magistrate
Judge Patricia A. Sullivan recommended that the Court deny Plaintiff’s
Application

to

Proceed

without

Prepayment

of

Fees

and

Affidavit

(“Application”) (ECF No. 2) and direct Plaintiff to pay the filing fee
within thirty days of adopting the R&R.

Having reviewed the R&R and

the relevant papers, and hearing no objection, the Court ACCEPTS the
R&R

and

adopts

its

recommendations

Application, therefore, is DENIED.

and

reasoning.

Plaintiff’s

Plaintiff is directed to pay the

filing fee within thirty days from entry of this Order; otherwise,
Plaintiff’s case will be dismissed without prejudice.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: May 8, 2018

Case 1:17-cv-00465-WES-PAS Document 5 Filed 12/04/17 Page 1 of 3 PageID #: 15

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
JAMES MERIDA,
Plaintiff,
v.
DEREK NONNENMACHER,
Defendant.

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:
:
:
:
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:

C.A. No. 17-465WES

REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, United States Magistrate Judge.
This matter is before the Court on the motion of Plaintiff James Merida to proceed in
forma pauperis (“IFP”) (ECF No. 2). The motion was referred to me. After review of the
original motion, I directed Plaintiff to supplement his financial affidavit with additional
information to support his claim of financial desperation by November 10, 2017, making clear
that if the information he provided failed to establish that he is eligible for IFP status, I would
recommend that the IFP motion be denied. ECF No. 3. After Plaintiff made a good faith effort
to comply, this deadline was extended to November 27, 2017.
Plaintiff complied with this Order by filing supplemental information; his
supplementation establishes that his family income is just sufficient to cover estimated monthly
expenses, including making payments on debts and caring for children and pets, as well as that
some, but far from all, of the family savings is bespoke. ECF No. 4. Most importantly, the
completed application establishes that Plaintiff is able to discharge his responsibilities, leaving
himself and his family with $8,000 in savings which could be used for this litigation.
Accordingly, based on my review of the supplemental information, together with his original
motion, I reluctantly conclude that the motion should be denied and address it by this report and
recommendation. Janneh v. Johnson & Wales Univ., No. CA 11-352 ML, 2011 WL 4597510, at

Case 1:17-cv-00465-WES-PAS Document 5 Filed 12/04/17 Page 2 of 3 PageID #: 16

*1 (D.R.I. Sept. 12, 2011) (denial of a motion to proceed in forma pauperis is functional
equivalent of involuntary dismissal; magistrate judge should issue report and recommendation
for final decision by district court).
Section 1915 permits persons otherwise unable to access the courts to proceed without
paying such costs as the fees for filing and service, which instead are defrayed at public expense.
28 U.S.C. § 1915(a). As Justice Hugo Black, speaking for a unanimous Supreme Court many
years ago, made clear:
We cannot agree with the court below that one must be absolutely destitute to
enjoy the benefit of the statute . . . . To say that no persons are entitled to the
statute’s benefits until they have sworn to contribute to payment of costs, the last
dollar they have or can get, and thus make themselves and their dependents
wholly destitute, would be to construe the statute in a way that would throw its
beneficiaries into the category of public charges. The public would not be
profited if relieved of paying costs of a particular litigation only to have imposed
on it the expense of supporting the person thereby made an object of public
support. Nor does the result seem more desirable if the effect of this statutory
interpretation is to force a litigant to abandon what may be a meritorious claim in
order to spare himself complete destitution.
Adkins v. E. I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). Nevertheless, the First
Circuit has bluntly emphasized that even a plaintiff of small means should be asked to “‘put his
money where his mouth is,’ it being all too easy to file suits, even with sufficient pro forma
allegations, if it costs nothing whatever to do so.” In re Stump, 449 F.2d 1297, 1298 (1st Cir.
1971) (per curiam). Thus, in evaluating the merits of an IFP motion, this Court must “hold the
balance steady and true as between fairness to the putatively indigent suitor and fairness to the
society which ultimately foots the bill.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I.
1984) (Selya, J.).
Plaintiff’s IFP affidavit, read together with the supporting addendum and
supplementation, presents an applicant who appears to be a hard-working individual properly

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discharging responsibilities to family, including children. While the Court must acknowledge
that paying $400 for the filing fee is a significant expenditure for him, nevertheless, he is not an
applicant whose poverty is such as to outweigh the “fairness to the society which ultimately foots
the bill,” as is necessary for eligibility to proceed IFP. Recognizing that Plaintiff and his wife
have doubtless labored hard to create their nest egg, the Court is constrained to find that
available savings of $8000 are more than sufficient to pay the $400 federal filing fee and for
service of the complaint without causing him or his family to become the “object of public
support.” Adkins, 335 U.S. at 339-40. Based on that fact alone, I find that Plaintiff does not
qualify for IFP status.
Accordingly, I recommend that Plaintiff’s Application to Proceed without Prepayment of
Fees and Affidavit (ECF No. 2) be DENIED and that he be directed to pay the filing fee within
thirty days of the adoption of this report and recommendation. If he does not pay the filing fee
during that time period, I recommend that the case be dismissed without prejudice.
Any objection to this report and recommendation must be specific and must be served
and filed with the Clerk of the Court within fourteen (14) days after its service on the objecting
party. See Fed. R. Civ. P. 72(b)(2); DRI LR Cv 72(d). Failure to file specific objections in a
timely manner constitutes waiver of the right to review by the district judge and the right to
appeal the Court’s decision. See United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008);
Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980).

/s/ Patricia A. Sullivan
PATRICIA A. SULLIVAN
United States Magistrate Judge
December 4, 2017

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