Summary
denying request to proceed in forma pauperis where plaintiff and spouse had combined monthly income of $3360 and &700 in a bank account
Summary of this case from Tillman v. City of Fort WorthOpinion
3:03-CV-1813-L
November 6, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:FINDINGS AND CONCLUSIONS:
Type of Case: This is a job discrimination action filed by a pro se individual.
Parties: Plaintiff is a resident of Dallas, Texas. Defendant is the Wyndham Anatole Hotel in Dallas, Texas. The court has not issued process in this case.
Statement of the Case: On August 13, 2003, Plaintiff filed the complaint in this action along with a motion to proceed in forma pauperis to establish that she is unable to pay the $150.00 filing fee. On November 3, 2003, Plaintiff submitted an amended complaint and an affidavit in support of her request to proceed in forma pauperis, providing additional financial information as required by this court's order filed on October 22, 2003.
Findings and Conclusions: The statute authorizing the court to grant in forma pauperis status to an indigent litigant states that:
Subject to subsection (b), any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress.28 U.S.C. § 1915(a)(1).
The mere execution of an affidavit of indigence does not automatically entitle a litigant to proceed in forma pauperis. Rather, the court enjoys limited discretion to grant or deny a motion for leave to proceed in forma pauperis based upon the financial statement set forth within the applicant's affidavit. Adkins v. E.I. Du Pont De Nemours Co., Inc., 335 U.S. 331, 337, 69 S.Ct. 85, 88 (1948); Green v. Estelle, 649 F.2d 298, 302 (5th Cir. Unit A June 1981); 28 U.S.C. § 1915(a).
A review of the financial information, submitted in the affidavit in support of the request to proceed in forma pauperis, reflects that Plaintiff is presently employed, earning $1,120 per month. (Affidavit in support of request to proceed in forma pauperis at 1-2). Plaintiffs spouse is also employed, earning $2,240 per month. (Id.). In addition to the above income, Plaintiff and her spouse have $700 in their checking account. (Id. at 3). The combined income of Plaintiff and her husband constitutes sufficient funds to pay their family's average monthly expenses as well as the $150.00 filing fee in this case. Accordingly, Plaintiffs motion to proceed in forma pauperis should be denied. RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court enter its order denying Plaintiffs request to proceed in forma pauperis.
It is further recommended that the District Court inform Plaintiff that her complaint will be subject to dismissal without notice, unless Plaintiff tenders the $ 150.00 filing within thirty (30) days of the District Court's order.
It is further recommended that the caption in this case be modified to reflect Plaintiffs full name: Reyna Isabel Lazo Montiel.
The Clerk will transmit a copy of this recommendation to Plaintiff.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n. 79 F.3d 1415 (5th Cir. 1996) ( en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.