Opinion
3:01-CV-710-P.
May 11, 2001
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 District Court, the subject cause 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 job discrimination action.
Parties: Plaintiff is a resident of Garland, Texas. Defendant is Sherwin Williams Company. The court has not issued process in this case.
Statement of the Case: On April 10, 2001, Plaintiff filed the complaint in this action. Subsequently on April 30, 2001, Plaintiff filed a motion to proceed in forma pauperis to establish that he is unable to pay the $150.00 filing fee.
Findings and Conclusions: The statute authorizing the court to grant in forma pauperis status to an indigent litigant states that:
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 financial information, submitted in the motion for leave to proceed in forma pauperis, reflects that Plaintiff is presently employed, earning a gross salary of $2,291 per month. (See Declaration in support of request to proceed in forma pauperis, attached to the motion for leave to proceed in forma pauperis). This salary constitutes sufficient funds within which to pay the $150.00 filing fee. Accordingly, Plaintiff's motion to proceed in forma pauperis should be denied.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court enter its order denying Plaintiff s request to proceed informa pauperis and directing that the complaint be dismissed without prejudice unless Plaintiff tenders the $150.00 filing fee within thirty days of the District Court's order.
The Clerk will mail a copy of this recommendation to Plaintiff.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.