Opinion
Case No. 2:18-cv-2224-MBS-MGB
08-16-2018
Donald Carey Mercer, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Donald Carey Mercer ("Plaintiff"), through legal counsel, has filed for judicial review of the Commissioner's final administrative decision denying disability benefits. Pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. Pursuant to Local Civil Rule 73.02(B)(2) (D.S.C.), the Magistrate Judge is authorized to review the file and to submit findings and recommendations to the District Judge. Upon review, the Magistrate Judge recommends that Plaintiff's motion to proceed in forma pauperis ("IFP") be denied for the following reasons:
The Fourth Circuit Court of Appeals has held that an order denying leave to proceed IFP is the "functional equivalent" of a dismissal, and thus, is outside the scope of a magistrate's authority. Hunter v. Roventini, 617 F. App'x 225, 226 (4th Cir. 2015) (unpublished).
I. Relevant Law: Applications to Proceed IFP
A plaintiff may pursue a civil action in federal court without prepayment of the filing fee if he submits an affidavit containing a statement of his income and assets and demonstrates that he cannot afford to pay the required filing fee. 28 U.S.C. § 1915(a)(1). The purpose of the IFP statute is to assure that indigent persons have equal access to the judicial system by allowing them to proceed without having to pay the filing fee. Flint v. Haynes, 651 F.2d 970, 973 (4th Cir.1981), cert. denied, 454 U.S. 1151 (1982). A plaintiff does not have to prove that he is "absolutely destitute to enjoy the benefit of the statute." Adkins v. E.I. Du Pont de Nemours & Co., 335 U .S. 331, 339 (1948).
An affidavit to proceed IFP is sufficient if it indicates that the plaintiff "cannot because of his poverty pay ... for the costs and still be able to provide himself and dependents with the necessities of life." Adkins, 335 U.S. at 339. If a court determines at any time that the allegation of poverty in an IFP application is not true, then the court "shall dismiss the case." 28 U.S.C. § 1915(e)(2)(A); and see, e.g., Justice v. Granville County Board of Education, 2012 WL 1801949 (E.D.N.C. May 17, 2012) ("dismissal is mandatory if the court concludes that an applicant's allegation of poverty is untrue"), affirmed by, 479 F. App'x 451 (4th Cir. Oct. 1, 2012) (per curiam), cert. denied, 133 S.Ct. 1657 (2013); Berry v. Locke, 2009 WL 1587315, *5 (E.D.Va. June 5, 2009) ("Even if Berry's misstatements were made in good faith, her case is subject to dismissal because her allegation of poverty was untrue"), appeal dismissed, 357 F.App'x 513 (4th Cir. 2009).
Prior to statutory amendment made to 28 U.S.C. § 1915 in 1996, a federal court had discretion to dismiss a case if it determined that an allegation of poverty was untrue. See Denton v. Hernandez, 504 U.S. 25, 27 (1992). The 1996 amendment changed the words "may dismiss" to "shall dismiss." Mandatory dismissal is now the majority view, and district courts in the Fourth Circuit have adhered to the majority view. See, e.g., Justice, 2012 WL 1801949 at *6 n.5; Staten v. Tekelec, 2011 WL 2358221, *1 (E.D.N.C. June 9, 2011) (dismissing with prejudice); Berry, 2009 WL 1587315 at *5;
II. Discussion
Plaintiff has submitted an Application to Proceed Without Prepaying Fees or Costs (Form AO 240), which the Court construes as a motion for leave to proceed IFP. (See DE# 4, filed August 13, 2018). See 28 U.S.C. § 1915.
Review of the application indicates that Plaintiff is able to pay the filing fee in this case. Plaintiff indicates that he has substantial assets and income. For example, he indicates he has monthly income of $5,048.79 (from combined VA retirement and disability benefits), has $160,000.00 in his checking and/or savings account, and owns two automobiles (a 2017 GMC Sierra 1500 truck and a 2014 BMW 535d). While Plaintiff lists some significant monthly estimated expenses, Plaintiff's application, including his monthly income, substantial savings, and level of discretionary expenses, indicates that he is not indigent.
The online Merriam-Webster Dictionary defines "indigent" as "suffering from extreme poverty." Similarly, the Merriam-Webster Dictionary defines "destitute" as "lacking possessions and resources; especially suffering extreme poverty." See ttps://www.merriam-webster.com/dictionary.
Based on the information in Plaintiff's application, payment of the filing fee in this case would not deprive Plaintiff and his wife of any necessities of life. See, e.g., Justice, 2012 WL 1801949, *3 (denying IFP status because "the benefit of filing IFP was not intended to allow individuals with significant real and personal property interests to avoid paying a filing fee"); see also Cabbil v. United States, Case No. 1:14-cv-4122-JMC-PJG, 2015 WL 6905072, *1 (D.S.C. Nov. 11, 2015) (holding that plaintiff was not entitled to proceed IFP and observing that "[t]he "privilege to proceed [IFP] is reserved to the many truly impoverished litigants who, within the District Court's sound discretion, would remain without [a] legal remedy if such privilege were not afforded to them"), appeal dism'd, 641 F.App'x 264 (4th Cir. March 21, 2016).
Plaintiff has not explained why he believes he is unable to pay the filing fee. The information in the record presently before the Court indicates that the Plaintiff is able to pay the filing fee.
III. Conclusion
Accordingly, the Magistrate Judge recommends that: 1) the Plaintiff's motion to proceed IFP (DE#4) should be denied ; and 2) Plaintiff should be given thirty (30) days in which to pay the filing fee. If Plaintiff does not pay the filing fee, this case should be dismissed. See 28 U.S.C. § 1915(e)(2)(A).
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE August 16, 2018
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).