Demien v. Sprint

Filing 4

ORDER signed by Judge J.P. Stadtmueller on 8/23/2017 DENYING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee. Plaintiff to remit entire $400.00 filing fee by 9/13/2017 or this action will be dismissed. (cc: all counsel, via mail to Kenneth A. Demien) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KENNETH A. DEMIEN,
Plaintiff,

v.

Case No. 17-CV-1082-JPS

SPRINT,
Defendant.

ORDER

Plaintiff, Kenneth A. Demien, filed a pro se complaint alleging that
Defendant Sprint, his former employer, terminated him due to his age and
in retaliation for his complaints of age discrimination. (Docket #1). Before
the Court is Plaintiff’s motion to proceed in forma pauperis. (Docket #2).
In order to allow a plaintiff to proceed without paying the filing fee,
the Court must first decide whether the plaintiff has the ability to pay the
filing fee and, if not, whether the lawsuit is frivolous. 28 U.S.C. §§ 1915(a),
(e)(2)(B)(I). On the first question, although the plaintiff need not show that
he is totally destitute, Zaun v. Dobbin, 628 F.2d 990, 992 (7th Cir. 1980), it
must be remembered that the privilege of proceeding in forma pauperis “is
reserved to the many truly impoverished litigants who, within the District
Court’s sound discretion, would remain without legal remedy if such
privilege were not afforded to them,” Brewster v. N. Am. Van Lines, Inc., 461
F.2d 649, 651 (7th Cir. 1972).
Plaintiff avers in his motion that he is separated from his wife,
unemployed, and has no dependents. (Docket #2 at 1). He claims to receive
$2,167.00 in monthly income through Social Security benefits and $267.00
per month in pension payments from Sprint, for a total monthly income of

$2,434.00. Id. at 2. He asserts that his monthly expenses, including his
mortgage, car payment, and other household expenses, total $2,774.00. Id.
His assets include a 2011 Chrysler Cherokee, which he values at $13,500, a
home worth $360,000.00, with $60,000 in equity, and a checking account
containing $2,853.00. Id. at 3. He avers that after being wrongfully forced
into retirement from Sprint, he is “struggling and just trying to get by each
month.” Id. at 4.
On these averments, the Court cannot conclude that Plaintiff is
unable to afford the $400.00 filing fee. Although his monthly expenses
appear to exceed his income, Plaintiff has numerous valuable assets.
Indeed, according to Plaintiff, he has enough money in his checking account
to immediately pay the filing fee in this case. The Court sympathizes with
Plaintiff’s diminished financial means as a result of his separation from
Sprint, but suffering such a setback does not mean that Plaintiff is actually
indigent. See Wolinsky v. Bd. of Educ. of City of Chicago, No. 95 C 6487, 1996
WL 66003, at *1 (N.D. Ill. Feb. 12, 1996) (denying leave to proceed in forma
pauperis where the plaintiff had social security income and funds in a bank
account).
The federal in forma pauperis statute is designed to ensure that
indigent litigants have meaningful access to the federal courts, not that any
pro se litigant may assert his legal claims for free. See Neitzke v. Williams, 490
U.S. 319, 324 (1989). As such, the Court is obliged to deny Plaintiff leave to
proceed without prepayment of the filing fee in this case. Plaintiff must pay
the filing fee in full within twenty-one (21) days of the date of this Order or
his case will be dismissed.

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Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed in forma
pauperis (Docket #2) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff must remit the entire
$400.00 filing fee for this action on or before September 13, 2017 or this
action will be dismissed; and
IT IS FURTHER ORDERED that Plaintiff shall submit all
correspondence and legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. It will only delay the processing of the matter.
In addition, the parties must notify the Clerk of Court of any change
of address. Failure to do so could result in orders or other information not
being timely delivered, thus affecting the legal rights of the parties.
Dated at Milwaukee, Wisconsin, this 23rd day of August, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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