Opinion
C/A 8:24-cv-00534-HMH-KFM
03-11-2024
Joshua Lynn Robinson, Plaintiff, v. Easley Police Department, Defendant.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE
This matter is before the court on motions to proceed in forma pauperis filed by the plaintiff (docs. 3; 13). The plaintiff, a non-prisoner proceeding pro se, brings this action seeking damages from the defendant (doc. 1). Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
ALLEGATIONS
The plaintiff filed this action pursuant to 42 U.S.C. § 1983 seeking damages from the defendant (doc. 1). Of note, some of the plaintiff's allegations appear to involve the plaintiff's pending charges for two counts of domestic violence and one count of resisting arrest in the Greenville County General Sessions Court as well as a pending charge for unlawfully placing a child at risk in the Pickens County General Sessions Court. See Greenville County Public Index, https://publicindex.sccourts.org/Greenville/ PublicIndex/PISearch.aspx (enter the plaintiff's name and 2021A2320500775, 2021A2320500776, 2023A2330210443) (last visited February 21, 2024); Pickens County Public Index, https://publicindex.sccourts.org/Pickens/PublicIndex/PISearch.aspx (enter the plaintiff's name and 2023A3920400103 (last visited February 21, 2024).
Phillips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts “may properly take judicial notice of matters of public record.”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘[t]he most frequent use of judicial notice . . . is in noticing the content of court records.'”).
The plaintiff alleges that his Fourth and Fifth Amendment rights have been violated by the Department of Social Services (“DSS”) as well as the defendant (doc. 1 at 3). He contends that after a false accusation was made by his daughter's mother, DSS falsified an investigation and the defendant did no investigation into the allegation before removing his daughter from his custody (id. at 5). The plaintiff contends that he was thrown in jail by the defendant, his reputation was destroyed, and he hasn't seen his daughter's mother since February 2023 (id.). For relief, the plaintiff appears to seek money damages for the destruction of his reputation/business and the loss of his daughters (id.).
APPLICABLE LAW & ANALYSIS
As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
As noted above, the plaintiff has filed motions for leave to proceed in forma pauperis under 28 U.S.C. § 1915 (docs. 3; 13). 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 assets and demonstrates that he cannot afford to pay the required filing fee. 28 U.S.C. § 1915(a)(1). The purpose of the in forma pauperis 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. Adkins v. E.I. Dupont de Nemours & Co., 335 U.S. 331, 338-39 (1948). A plaintiff does not have to prove that he is “absolutely destitute to enjoy the benefit of the statute.” Id. at 339. Instead, an affidavit to proceed IFP is sufficient if it states facts indicating that the plaintiff cannot afford to pay the filing fee. Id. at 339-40. However, “[a] Plaintiff who is not truly indigent may not proceed in forma pauperis simply to avoid all economic costs of commencing legal actions.” Fox v. S.C. Judicial Dep't, C/A No. 2:16-cv-00209-RMG, 2016 WL 7469805, at *1 (D.S.C. Feb. 12, 2016).
As noted above, the plaintiff commenced this action on February 1, 2024, seeking damages from the defendant (doc. 1). The plaintiff has also filed two Applications to Proceed in District Court without Prepaying Fees or Costs (Form AO-240) (docs. 3; 13). The plaintiff's motions indicate that he is employed and his gross monthly wages are $15,000 and his take home pay monthly is $12,000 (doc. 13 at 1). The plaintiff alleges that his monthly expenses include $605 for his truck, $1,235 for rent, $350 for utilities, $5,000 for material costs, and $485 for insurances for a total of $7,675 (id. at 2). The plaintiff also alleges that he has $14,357 in a checking or savings account (id.).
A district court has the discretion to grant or deny an application to proceed in forma pauperis. See Dillard v. Liberty Loan Corp., 626 F.2d 363, 364 (4th Cir. 1980). The Court must examine the information provided by a litigant in his financial affidavit. See A&D Sec. Consultants v. Gray, 481 Fed.Appx. 63, 64 (4th Cir. 2012). As noted, 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, 335 U.S. at 339-40. Courts have found that it is sometimes difficult to decide applications under § 1915 because “there are no ‘magic formulas' for making the determination that the requisite in forma pauperis status is present, but instead, there is required a careful scrutiny and weighing of all the relevant facts and circumstances involved in each particular situation.” Carter v. Telectron, Inc., 452 F.Supp. 939, 942 (S.D. Tex. 1976). In Carter, the court set forth a three-part list of discretionary factors to be evaluated under 28 U.S.C. § 1915(a):
(1) Is the litigant barred from the federal courts by the reason of his or her “impecunity?”
(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 herself destitute, to prosecute his claim?Gallman v. Comm'r of Soc. Sec. Admin., C/A No. 1:22-cv-02838-RMG-SVH, 2022 WL 4825303, at *1-2 (D.S.C. Aug. 26, 2022), Report and Recommendation adopted by 2022 WL 4808773 (D.S.C. Oct. 3, 2022) (citing Carter, 452 F.Supp. at 943).
As noted above, the plaintiff's take-home pay well-exceeds his monthly expenses and he has ample funds in his checking account. As such, he does not appear to be indigent and unable to pay the filing fee. Indeed, in another case filed by the plaintiff, after the Honorable Jacquelyn D. Austin, then a United States Magistrate Judge, recommended that the plaintiff's motion for leave to proceed in forma pauperis be denied, the plaintiff paid the full filing fee, recognizing that he is not entitled to proceed in forma pauperis. See Robinson v. Greer Police Dep't, et al., C/A No. 6:24-cv-00146-HMH, at docs. 16; 18 (D.S.C.). Thus, because the plaintiff's income exceeds his listed expenses on a monthly basis, the plaintiff must make decisions each month where to spend any extra money. As such, it does not appear that the plaintiff would be rendered destitute by paying the filing fee of $405 or have to forego any of his basic human needs by paying the $405. Hence, the plaintiff must “‘confront the initial dilemma which faces most other potential civil litigants: Is the merit of the claim worth the cost of pursuing it?'” Carter, 452 F.Supp. at 944 (internal citation omitted). Requiring the plaintiff to pay the full filing fee of $405 would not bar him from litigating his claims in the federal courts or impose an undue hardship upon him. As the Fourth Circuit has explained, requiring “economic decisions about filing lawsuits does not deny access to the courts . . . [persons] cannot file a lawsuit every time they suffer a real or imagined slight.” Roller v. Gunn, 107 F.3d 227, 233 (4th Cir. 1997).
Therefore, the plaintiff is not qualified to proceed in forma pauperis. See, e.g., Cabbil v. United States, C/A No. 1:14-cv-04122-JMC, 2015 WL 6905072, at *1 (D.S.C. Nov. 9, 2015) (denying leave to proceed in forma pauperis where movant had $1,500 in assets and no regular monthly expenses). Accordingly, based on a review of the discretionary factors listed above, the Court should deny the plaintiff's motions to proceed in forma pauperis.
RECOMMENDATION
Now, therefore, based upon the foregoing, IT IS RECOMMENDED that the plaintiff's motions to proceed in forma pauperis (docs. 3; 13) be denied. Should the United States District Judge adopt this recommendation, it is recommended that the plaintiff be provided twenty-one (21) days to pay the filing fee of $405.00 or the case will be dismissed. The attention of the parties is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
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 committees 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
250 East North Street, Room 2300
Greenville, South Carolina 29601
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).