Opinion
No. 3:02-CV-557-M
April 18, 2002
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 court in implementation thereof, this case 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 civil action brought by a federal prisoner pursuant to the Federal Tort Claims Act.
Parties: Plaintiff is presently incarcerated at FCI Seagoville in Seagoville, Texas. The Defendants is the Federal Bureau of Prisons. The court has not issued process in this case.
Statement of the Case: On March 19, 2002, Plaintiff filed the complaint in this action. On April 12, 2002, in response to a deficiency order, he submitted a motion to proceed in forma pauperis (TFP). The certificate of his inmate trust account, attached to the TFP motion, indicates that Plaintiff presently has a balance of $1,628.08. During the last six months, the balance in Plaintiff's inmate trust account has fluctuated between $900 and the present balance of $1,628.08.
Findings and Conclusions: 28 U.S.C. § 1915, which governs in forma pauperis proceedings, authorizes commencement and prosecution of a civil suit by an indigent litigant "without prepayment of fees and costs." That statute provides in pertinent part as follows:
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 six-month certified statement submitted by Plaintiff reflects that he is able to pay the $150.00 filing fee associated with this cause of action. As noted above, he presently has a balance of $1,628.08 in his inmate trust account. Therefore, Plaintiff should be required to pay the
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court enter its order denying Plaintiff's request to proceed in forma pauperis.
It is further recommended that the District Court inform Plaintiff that the 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.