Opinion
Civil Action DR-23-CV-022-AM-JAC
01-04-2024
CHRISTOPHER JAMES CARTER, #058751, Plaintiff, v. JASON MITCHELL AND GILBERT ALVERADO, Defendants.
Honorable Alia Moses, Chief United States District Judge
REPORT AND RECOMMENDATION
JOSEPH A. CORDOVA UNITED STATES MAGISTRATE JUDGE
On May 15, 2023, Plaintiff Christopher James Carter, a prisoner proceeding pro se, filed an Application to Proceed in District Court Without Prepaying Fees or Costs. ECF No. 1. Carter seeks to file a civil rights and tort complaint against two correctional officers at the Maverick County Detention Center, alleging that correctional officers failed to provide medication and caused bodily injury. According to Carter's application, he is unable to pay the cost to file suit and therefore seeks to proceed in forma pauperis (“IFP”). Because all pretrial matters were assigned to the undersigned pursuant to 28 U.S.C. § 636, the undersigned hereby issues this report and recommendation, recommending that Plaintiff's application be DENIED.
Several federal appellate courts have explicitly held that magistrate judges lack the authority to deny motions to proceed IFP. See, e.g., Lister v. Dep't of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (denial of motion to proceed IFP is dispositive and magistrate judge should have issued report and recommendation for district court's review); Woods v. Dahlberg, 894 F.2d 187, 187 (6th Cir. 1990) (denial of motion to proceed IFP is functional equivalent of involuntary dismissal and therefore a dispositive motion which must be handled by magistrate judge via report and recommendation subject to final review in the district court). In the Fifth Circuit, the court has held that absent the parties' consent to magistrate judge jurisdiction, magistrate judges lack the authority to deny motions to proceed IFP on appeal. Donaldson v. Ducote, 373 F.3d 622, 624-25 (5th Cir. 2004). In light of Donaldson and other appellate courts' treatment of magistrate judges' orders denying IFP status, the undersigned has issued this report and recommendation to give Plaintiff an opportunity to object and obtain de novo review from the District Court.
I. APPLICABLE LAW
District courts may authorize the commencement of a civil action without prepayment of filing fees and costs if the person lacks “the financial resources to pay any part of the statutory filing costs.” Prows v. Kastner, 842 F.2d 138, 140 (5th Cir. 1988). To obtain authorization, the plaintiff filing suit must submit “an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). Plaintiff, as a prisoner, must also “submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of each prison at which the prisoner is or was confined.” § 1915(a)(2). The decision to grant or deny IFP status is discretionary and should only be made after examining the financial condition of the applicant to determine whether the payment of fees would cause him to suffer “undue financial hardship.” Prows, 842 F.2d at 140.
II. ANALYSIS AND CONCLUSION
Plaintiff submitted a basic application to proceed IFP but did not include a certified copy of his trust fund account statement. ECF No. 1 at 1-3. On October 2, 2023, the predecessor of the undersigned ordered Plaintiff to cure the deficiency within forty-five days and warned Plaintiff that failure to do so would result in denial of the application and dismissal of his complaint. See ECF No. 4. Plaintiff mailed a printout of transactions from his current place of confinement for the dates October 10, 2023, through July 8, 2023. He, however, did not submit a certified copy or include any statements for the 6-month period preceding the filing of his complaint. Because Plaintiff still has not met the statutory requirements of § 1915 and has not paid the filing fee, the undersigned RECOMMENDS that Plaintiff's application be DENIED and his complaint DISMISSED WITHOUT PREJUDICE.
III. NOTICE
The United States District Clerk shall serve a copy of this report and recommendation on all parties either by (1) electronic transmittal to all parties represented by an attorney registered as a filing user with the Clerk of Court pursuant to the Court's Procedural Rules for Electronic Filing in Civil and Criminal Cases; or (2) certified mail, return receipt requested, to any party not represented by an attorney registered as a filing user. Pursuant to 28 U.S.C. § 636(b)(1), any party who wishes to object to this report and recommendation may do so within fourteen days after being served with a copy. Failure to file written objections to the findings and recommendations contained in this report shall bar an aggrieved party from receiving a de novo review by the District Court of the findings and recommendations contained herein, see 28 U.S.C. § 636(b)(1)(c), and shall bar an aggrieved party from appealing “the unobjected-to proposed factual findings and legal conclusions accepted by the District Court” except on grounds of plain error. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996).