Opinion
C/A No. 9:19-2591-BHH-BM
10-28-2019
Ervin Edmond Hagan, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
The sole issue in this Report and Recommendation whether Plaintiff, Ervin Edmond Hagan, should be required to pay the filing fee or whether Plaintiff's financial condition justifies waiver of the payment. Plaintiff commenced this action pursuant to 42 U.S.C. § 405(g) requesting review of the Commissioner of Social Security's decision denying his application for disability benefits. All pretrial proceedings in this matter were referred to the undersigned pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.).
Plaintiff filed an Application to Proceed in District Court without Prepaying Fees or Costs (Form AO-240 - Short Form) [ECF No. 4] and, in response to the Court's order (ECF No. 7), he completed a Form AO-239 (Application to Proceed in District Court without Prepaying Fees or Costs - Long Form) and provided an answer to the Court's Special Interrogatory [ECF No. 10]. Plaintiff reports monthly retirement and disability income totaling $6,013 per month, a home valued at $550,000, two cars valued at a total of $85,000, and $39 in checking/savings accounts. He reports two minor dependents and that he and his spouse (who does not have a separate income) have monthly expenses totaling $ 7,357.
On the Form AO-240, Plaintiff listed his home value as $600,000, but estimated the value as $550,000 on the AO-239.
On his Form AO-240, Plaintiff listed expenses of $5,522 a month. ECF No. 4.
Grants or denials of applications to proceed in forma pauperis are left to the discretion of federal district courts. See Dillard v. Liberty Loan Corp., 626 F.2d 363, 364 (4th Cir. 1980). A litigant is not required to show that he is completely destitute in order to qualify as an indigent within the meaning of 28 U.S.C. § 1915(a). Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 337-44 (1948). However, the "privilege to proceed without posting security for costs and fees is reserved to the many truly impoverished litigants who ... would remain without legal remedy if such privilege were not afforded to them." Brewster v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). The information provided by Plaintiff raises questions over the application to proceed without prepayment of fees.
In Carter v. Telectron, Inc., 452 F. Supp. 939 (S.D. Tex. 1976), the court, citing Adkins and cases in the Third and Fifth Circuits, enunciated a legal test used to determine whether a person should proceed in forma pauperis under 28 U.S.C. § 1915:
(1) Is the litigant barred from the federal courts by the reason of his "impecunity"?Id. at 943; see also Abbot v. Commissioner of Social Security, C/A No. 4:10-2253-JFA-TER, 2010 WL 4226151, at *1 (D.S.C. Sept. 17, 2010), adopted by 2010 WL 4220550 (D.S.C. Oct. 20, 2010); Schoenfeld v. Donaghue, C/A No. 4:07-617-RBH, 2007 WL 1302659, at *3 (D.S.C. May 2, 2007). Upon review of the information provided to the Court, it does not appear that Plaintiff would be rendered destitute by paying the filing fee of $400 (including a $50 administrative fee), nor is there any indication that requiring payment of the filing fee would impose an undue hardship or effectively block Plaintiff's access to the courts. See Carter, 452 F. Supp. at 942 [holding plaintiff was not indigent because he had the right to collect a judgment of $5,486.76]; see also Ali v. Cuyler, 547 F. Supp. 129 (E.D. Pa. 1982) [finding $450.00 in savings sufficient to allow the plaintiff to pay the filing fee of $60.00 without foregoing basic human needs]. Plaintiff has significant income (over $72,000 per year). In determining what level of income constitutes poverty for purposes of 28 U.S.C. § 1915(a)(1), other courts have considered the poverty guidelines set by the United States Department of Health and Human Services as one measure. See, e.g., El v. U.S. Dep't of Commerce, No. 2:15-cv-532, 2016 WL 9223874, at *1 (E.D. Va. Sept. 21, 2016) Mann v. City of Moss Point, No. 1:14cv237, 2014 WL 4794544 (S.D. Miss. Sept. 25, 2014); Bruton v. Colvin, No. 4:14-CV-083, 2014 WL 840993 (N.D. Tex. Mar. 4, 2014); Nelson v. Louise, No. 10-827, 2011 WL 3648632 (E.D. La. July 27, 2011); Walker v. University of Texas Medical Branch, No. 1:08-CV-417, 2008 WL 4873733 (E.D. Tex. Oct. 30, 2008). Those guidelines set the 2019 poverty level for a family of four at $25,750 annually. See 84 Fed. Reg. 1167-02 (Feb. 1, 2019). Plaintiff's income (which is more than two and one-half times the poverty guideline) is significantly more than the Health and Human Services 2019 poverty guidelines. He also has significant assets, including a home and cars with a total value of approximately $635,000.00.
(2) Is his access to the courts blocked by the imposition of an undue hardship?
(3) Is the litigant forced to contribute his last dollar, or render himself destitute, to prosecute his claim?
In response to the special interrogatory, Plaintiff states that his "income does not allow [him] to pay for all of [his] current bills and [he is] therefore unable to pay the filing fees." (ECF No. 10 at 1). Courts, however, have denied IFP applications even where the plaintiffs' expenses exceed their income. See Slaughter v. Vilsack, No. 4:12-cv-94, 2013 WL 1704909 (M.D. Ga. April 19, 2013). Here, Plaintiff's list of monthly expenses includes more than $1,900 per month for late model (2019 and 2018) vehicles and $1324 per month for utilities (electricity, heating fuel, water, sewer, and telephone). "Section 1915 is designed to protect those litigants who suffer true financial hardship, not those who are well-equipped to pay the filing fee but choose to allocate their resources in a different manner." McCoy v. Colvin, No. 13-2068, 2013 WL 868682, at *1 (W.D. Ark. Mar. 7, 2013); see also Mann, 2014 WL 4794544, at *2 (S.D. Miss. Sept. 25, 2014)[considering an applicant's two vehicles valued at a combined $10,500 when denying IFP status to an individual whose monthly expenses exceeded his monthly income, noting "courts have denied IFP applications even where the plaintiffs' expenses exceed their income because the plaintiffs had other assets"]; Gibbons v. United States, No. 1:06CV75, 2007 WL 2060854, at *2 (N.D.W. Va. July 12, 2007) [considering the value of a mobile home valued at $3,000 and an automobile valued at $2,000 when denying IFP status to a plaintiff earning $529 per month]; Scherer v. State, No. 06-2446-JWL, 2006 WL 3147731, at *2 (D. Kan. Nov. 1, 2006)[considering the equity in the plaintiff's "one extra vehicle" and home when denying IFP status]; Ireland v. Reliance Standard Life Ins. Co., No. 97-0563, 1997 WL 85008, at *1 (N.D. Cal. Feb. 21, 1997)[denying in forma pauperis status despite plaintiff's unemployment and no funds in a bank account when she had $60,000 of equity in her home]. Thus, Plaintiff's argument should be rejected, his motion for IFP should be denied, and he should be required to pay the filing fee.
On the Form AO-239, Plaintiff listed that his monthly electric bill is $200 and his monthly water bill is $100. ECF No. 4.
Recommendation
For the foregoing reasons, it is recommended that Plaintiff's Application to Proceed Without Prepayment of Fees and Affidavit (ECF No. 4) be denied.
Plaintiffs' attention is directed to the important notice on the next page.
/s/_________
Bristow Marchant
United States Magistrate Judge October 28, 2019
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).