Opinion
C. A. 6:24-cv-00180-DCC-JDA
01-18-2024
Philip Scott Steele, Plaintiff, v. Alicia Sherry Aiken, Defendant.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge.
Philip Scott Steele (“Plaintiff”), a pretrial detainee at the Greenville County Detention Center, brings this civil action pursuant to 42 U.S.C. § 1983, alleging Defendant violated his rights under the United States Constitution. [Doc. 1.] Plaintiff is proceeding in this action pro se. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B), D.S.C., the undersigned Magistrate Judge is authorized to review the Complaint for relief and submit findings and recommendations to the District Court.
Presently before the Court is Plaintiff's motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915. [Doc. 2.] For the reasons below, it is recommended that Plaintiff's motion be denied and that he be required to pay the full filing fee of $405.00.
BACKGROUND
Plaintiff commenced this action by filing a Complaint on the standard form. [Doc. 1.] By way of summary, Plaintiff contends that Defendant committed perjury in a court of law by lying about him to a judge, thus violating his civil rights. [Id. at 4.] Plaintiff alleges that, during a bond hearing on August 12, 2022, Defendant “‘[e]xpress[ed m]alice,'” and, with “ill will, hostility and evil intention to injure, harm and defame” Plaintiff, testified at the hearing that Plaintiff had threatened to harm her, her children, and her whole family. [Id.at 5, 7.] Plaintiff contends these statements were false, but, because of the false statements, he was denied bail. [Id. at 7.]
For his injuries, Plaintiff alleges he has suffered damaged to his dignity and reputation, harm to his family relations, mental anguish, emotional distress, depression, and sleeplessness. [Id. at 9.] Plaintiff contends he was denied bond as a direct result of the false statements intentionally made by Defendant. [Id.] Plaintiff contends that Defendant's false statements constitute the torts of intentional infliction of mental anguish, libel, slander, and defamation of character. [Id.] For his relief, Plaintiff seeks money damages. [Id. at 13.]
The Court takes judicial notice that Plaintiff has been charged in the Greenville County Court of General Sessions with criminal sexual conduct with a minor at case numbers 2021A2320603124, 2021A2320603125, 2021A2320603126, 2021A2320603127, and 2021A2320603128. See Greenville County Thirteenth Judicial Circuit Public Index, available at https://publicindex.sccourts.org/Greenville/PublicIndex/PISearch.aspx (search by case numbers listed above) (last visited Jan. 16, 2024).
See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that 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 ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
STANDARD OF REVIEW
Review of Pro Se Filings
Plaintiff is a prisoner under the definition in 28 U.S.C. § 1915A(c), and purportedly “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if Plaintiff had prepaid the full filing fee, this Court would still be charged with screening Plaintiff's lawsuit to identify cognizable claims or to dismiss the Complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
Because Plaintiff is a pro se litigant, his 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, 94 (2007). However, even under this less stringent standard, the pro se pleading remains subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the Court can reasonably read the pleadings to state a valid claim on which Plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411,417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the Court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). 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).
Applications to Proceed In Forma Pauperis
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. Flint v. Haynes, 651 F.2d 970, 973 (4th Cir. 1981). 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). 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). Instead, an affidavit to proceed in forma pauperis is sufficient if it states facts indicating that the plaintiff cannot afford to pay the filing fee. Id. 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. Jud. Dep't, No. 2:16-cv-209-RMG, 2016 WL 7469805, at *1 (D.S.C. Feb. 12, 2016).
DISCUSSION
As noted, Plaintiff commenced this action by filing a Complaint pursuant to 42 U.S.C. § 1983, purportedly seeking to vindicate his constitutional rights. [Doc. 1.] Plaintiff has also filed an Application to Proceed in District Court without Prepaying Fees or Costs (Form AO-240), which is construed as a motion for leave to proceed in forma pauperis. [Doc. 2.]
In his motion, Plaintiff makes the following averments. Plaintiff receives monthly income in the amount of $1,875 in the form of a Social Security disability payment. [Id. at 1.] Plaintiff will start to receive regular Social Security income at age 65. [Id.] Plaintiff will receive yearly payments in the amount of $5,000 for a period of six years starting on June 1, 2024, from his ex-wife pursuant to a “marital agreement” entered by the Greenville County Family Court. [Id.] Plaintiff has approximately $40,000 in cash in a checking or savings account. [Id. at 1-2.] Plaintiff has not identified any expenses, dependents, or other debts or financial obligations. [Id. at 2.] Finally, Plaintiff asserts that he “will have the [$405.00] full filing fee paid as soon as it is returned.” [Id. at 1.]
Upon review, the undersigned concludes that Plaintiff is able to pay the filing fee. Plaintiff's motion reveals that his monthly income of $1,875 exceeds his monthly expenses, which are apparently $0, and he has available funds in the amount of approximately $40,000 cash with which he can pay the filing fee. See van Kampen v. South Carolina, No. 3:18-cv-1067-HMH-TER, 2018 WL 2291320, at *1 (D.S.C. Apr. 24, 2018) (denying the application to proceed in forma pauperis and noting the plaintiff had $6,500 in cash or in a checking or savings account), Report and Recommendation adopted by 2018 WL 2290102 (D.S.C. May 18, 2018). As such, Plaintiff does not appear to be indigent and unable to pay the filing fee and, therefore, is not qualified to proceed in forma pauperis. See, e.g., Cabbil v. United States, No. 1:14-cv-4122-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), appeal dismissed by 641 Fed.Appx. 264 (4th Cir. 2016).
RECOMMENDATION
Consequently, it is recommended that the District Court DENY Plaintiff's motion for leave to proceed in forma pauperis and provide Plaintiff with twenty-one (21) days to pay the full filing fee of $405.
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 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
250 East North Street, Suite 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).