Opinion
Civil Action No. 18-189J
10-31-2018
THEOPHILUS AKWEI, Plaintiff, v. BOP; MASHANNON VALLEY CORRECTIONAL CENTER; DR. ZIMMERLY; and GEO Inc., Defendants.
Judge Kim R. Gibson/Magistrate Judge Maureen P. Kelly Re: ECF No. 1 REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is recommended that the Motion for Leave to Proceed in Forma Pauperis (the "IFP Motion"), ECF No. 1, be denied because Plaintiff had more than sufficient funds in his inmate account pay the entire filing fee with substantial amounts remaining for his personal needs.
II. REPORT
Theophilus Akwei ("Plaintiff"), is pro se federal prisoner, who is currently housed in the Great Plains Correctional Facility, in Hinton, Oklahoma. In his proposed Complaint, Plaintiff complains about conditions in the Moshannon Valley Correctional Center, which is located within the territorial confines of the United States District Court for the Western District of Pennsylvania. Plaintiff has filed the IFP Motion in order to prosecute this prisoner civil rights action. However, because Plaintiff had $6,620.12 in his inmate account as late as July 27, 2018, ECF No. 1 at 5, and $771.69 as late as September 7, 2018, when, on September 13, 2018, (one day before he signed the IFP Motion) he chose to transfer $700.00 to a person outside of the prison, his IFP Motion should be denied and he should be required to pay the entire filing fee by a date certain or face dismissal of the suit.
Pursuant to the prisoner mail box rule, Plaintiff filed this action on September 14, 2018, when he signed the IFP Motion. Id. at 1.
The Court notes that Plaintiff's inmate account shows that from October 6, 2017, Plaintiff had a balance in his inmate account of $5,845.39 and that his balance never dipped below $5,000 thereafter (until August 14, 2018) and indeed rose to a high balance of $6,694.84 on July 2 to 16, 2018. Id. at 5. On August 14, 2018, the inmate account shows a debit of funds in the amount of $5,800 dollars to a "Martha Darko." Id. Even after that debit, the balance in Plaintiff's account was $820.12. Id. On September 13, 2018, one day before he signed his IFP Motion, Plaintiff transferred an additional $700.00 to a "Martha Darko," leaving him with a balance of $71.69. Id.
In addition, the Court notes the discrepancy between Plaintiff's assertions as to him not receiving any "gifts" of money or any money from "any other sources" within the last 12 months, which he made in his IFP Motion, ECF No. 1 ¶ 6 (e) & (f), and his inmate account statement which shows that between January 4, 2018 and July 2, 2018, Plaintiff received transfers of money into his inmate account on at least eight separate occasions, totaling $1,250.00.
Whether to grant or deny the IFP Motion is committed to the sound discretion of the District Court. See Cotto v. Tennis, 369 F. App'x 321, 322 (3d Cir. 2010) ("We review the denial of leave to proceed IFP for abuse of discretion."). In the sound exercise of our discretion and after reviewing the IFP Motion, we find that Plaintiff has not met his burden to show entitlement to IFP status.
The IFP Motion indicates that Plaintiff had more than sufficient funds to pay the filing fee in this case and opted instead to use his substantial resources for other purposes. Such a choice simply does not convince the Court that he should be entitled to proceed IFP. We judge Plaintiff to have sufficient funds or an ability to obtain sufficient funds so as to enable him to pay the $400.00 filing fee. Moreover, Plaintiff has not shown that paying the $400.00 filing fee would "force [him] to abandon what may be a meritorious claim in order to spare himself complete destitution." Cotto, 369 F. App'x at 322 (quoting Jones v. Zimmerman, 752 F.2d 76, 79 (3d Cir. 1985)).
III. CONCLUSION
For the reasons set forth herein, it is recommended that the pending IFP Motion be denied. If the District Court adopts this Report and Recommendation, Plaintiff, of course, may thereafter pay the entire filing fee within a time certain or face dismissal of the Complaint for failure to prosecute.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
RESPECTFULLY SUBMITTED:
/s/Maureen P. Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE Date: October 31, 2018 cc: The Honorable Kim R. Gibson
United States District Judge
THEOPHILUS AKWEI
78018-083
GREAT PLAINS CORRECTIONAL FACILITY
PO BOX 400
HINTON, OK 73047 LAINE E. COLEMAN