Opinion
C. A. 5:23-443-RMG-KDW
03-06-2023
Michael Tate, Plaintiff, v. Commissioner of the Social Security Administration, Defendants.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
The sole issue in this Report and Recommendation is whether Michael Tate (“Plaintiff”) should be required to pay the filing fee, or whether his financial condition justifies waiver of the payment. All pretrial proceedings in this matter were referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(b) (D.S.C.). For the reasons that follow, the undersigned recommends the district judge deny Plaintiff's request for indigent status.
I. Procedural Background
Plaintiff filed an Application to Proceed in District Court without Prepaying Fees or Costs (Form AO-240). ECF No. 3. In the Form AO-240, Plaintiff states he receives $6,795.04 a month in VA disability, and he has $15,000 in a checking or savings account. Id. at 2. Plaintiff states he has monthly expenses totaling $4,440. Id. Plaintiff list two dependents, and states he has no other financial obligations. Id.
Plaintiff's monthly expenses include his house payment, utilities, insurance, car payment, and credit card. ECF No. 3 at 2.
II. Discussion
Granting an application to proceed in forma pauperis (“IFP”) assures indigent persons have equal access to the judicial system without having to pay the filing fee. Bruce v. Samuels, 136 S.Ct. 627, 629 (2016). However, a plaintiff does not have to be “absolutely destitute” to obtain IFP status. Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948). Instead, IFP status is available to a person who proves that, because of poverty, he cannot pay the court costs and still be able to provide for themselves or their dependents necessities. Id. The grant or denial of IFP is left to the district court's discretion. See Dillard v. Liberty Loan Corp., 626 F.2d 363, 364 (4th Cir. 1980).
Because there is not clear precedent in the Fourth Circuit concerning a magistrate judge's authority to issue an order denying an application to proceed in forma pauperis, the undersigned submits a report and recommendation to preserve Plaintiff's opportunity to obtain de novo review by a district judge on objections.
Based on the information provided by Plaintiff, the undersigned finds Plaintiff should not be granted IFP status. Plaintiff has not shown that paying the filing fee would impose an undue financial hardship, or effectively block Plaintiff's access to the courts. The undersigned notes Plaintiff could pay the complete filing fee with the $15,000 he has in a savings or checking account while still being able to cover his other identified expenses.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge deny Plaintiff's Application to Proceed in District Court without Prepaying Fees or Costs. ECF No. 3. If the district judge accepts this recommendation, the undersigned further recommends Plaintiff be allowed 14 days from the date of the order denying indigent status to submit the required filing fee.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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 2317
Florence, South Carolina 29503
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).