Opinion
No. 2:18-CV-00046-BO
09-25-2018
Carol McCray, Plaintiff, v. Nancy Berryhill, Acting Commissioner of Social Security, Defendant.
Order
This cause comes before the court upon Plaintiff's motion for leave to proceed in forma pauperis. D.E. 1. Because the initial application contained insufficient information for the court to make a determination, by order dated September 6, 2018, Plaintiff was directed to submit a particularized application. D.E. 4.
On September 24, 2018, Plaintiff submitted her particularized application setting forth her income and expenses. D.E. 5. Although the particularized application lists monthly expenses for Plaintiff and her husband totaling $2624, they have a monthly income of $3496 from her disability payments and her husband's employment. Thus, Plaintiff's monthly household income exceeds her monthly household expenses by approximately $827.
In Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331 (1948), the Supreme Court first set forth the governing standard. It held: "[w]e think an affidavit is sufficient which states that one cannot because of his poverty 'pay or give security for the costs . . . and still be able to provide' himself and dependents 'with the necessities of life.'" Id. at 339; Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 203 (1993).
After considering the affidavit, given Plaintiff's current financial status, she has failed to demonstrate sufficient evidence indicating that payment of the required court costs would deprive her or her family of the "necessities of life." See Adkins, 335 U.S. at 339.
Accordingly, the undersigned recommends that the court deny Plaintiff's motion for leave to proceed in forma pauperis (D.E. 1, 5) and that it direct Plaintiff to remit the applicable filing fee to the Clerk of Court.
The court directs that the Clerk of Court serve a copy of this Memorandum and Recommendation on each of the parties or, if represented, their counsel. Each party shall have until 14 days after service of the Memorandum and Recommendation on the party to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation, receive further evidence, or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Owen v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985). Dated: September 25, 2018
/s/_________
Robert T. Numbers, II
United States Magistrate Judge