Opinion
C. A. 4:22-cv-03998-DCC-TER
11-17-2022
Ambre Kristin Finlayson, Plaintiff, v. Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
The sole issue in this Report and Recommendation is whether Plaintiff should be required to pay the filing fee, or whether her financial condition justifies waiver of the filing fee.
Plaintiff has filed an Application to Proceed Without Prepaying Fees or Costs (AO 240), also known as an application to proceed in forma pauperis. (ECF No. 3). In her application, Plaintiff reports she has $70,000 in cash or a savings/checking account. Plaintiff's husband “works for the state.”(ECF No. 3). This information raises questions over the application to proceed without prepayment of fees. A litigant is not required to show that she is completely destitute in order to qualify as an indigent within the meaning of 28 U.S.C. § 1915(a). Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 337-44 (1948). Grants or denials of applications to proceed in forma pauperis are left to the discretion of federal district courts. See Dillard v. Liberty Loan Corp., 626 F.2d 363, 364 (4th Cir. 1980).
Spousal income is an appropriate consideration in determining in forma pauperis status. Johnson v. James, No. CV 3:18-3508-CMC-TER, 2019 WL 343723, at *2 (D.S.C. Jan. 8, 2019), report and recommendation adopted, 2019 WL 342067 (D.S.C. Jan. 28, 2019)(citing Assaad-Faltas v. Univ. of S.C., 971 F.Supp. 985, 990 (D.S.C. 1997), aff'd sub nom., 165 F.3d 910 (4th Cir. 1998); Turner v. Colvin, No. 3:16-CV-17, 2016 WL 9223918, at *1 (N.D. W.Va. Feb. 16, 2016), report and recommendation adopted sub nom., 2016 WL 9138064 (N.D. W.Va. Mar. 23, 2016)(denying ifp status); Lee v. Wal-Mart Stores, Inc., 1993 WL 316756 at 3 (N.D. Ind., 1993) (the income and assets of close family members are relevant to a determination of indigence); Fridman v. City of New York, 195 F.Supp.2d 534, 537 (S.D.N.Y.2002) (courts consider “the resources that the applicant has or ‘can get' from those who ordinarily provide the applicant with the ‘necessities of life,' such as ‘from a spouse, parent, adult sibling or other next friend.'”) (quoting Williams v. Spencer, 455 F.Supp. 205, 208-09 (D. Md.1978); Greathouse v. Colvin, No. 2:16-CV-62, 2016 WL 10516723, at *1 (N.D. W.Va. July 28, 2016), report and recommendation adopted, 2016 WL 10516254 (N.D. W.Va. Oct. 4, 2016)(denying ifp status);Wolff v. Bee Healthy Med. Weight Loss Clinic, No. CV 3:17-3339-CMC-SVH, 2018 WL 1801597, at *2 (D.S.C. Jan. 16, 2018), report and recommendation adopted as modified, 2018 WL 718963 (D.S.C. Feb. 5, 2018)).
One district court has observed that the appropriate disposition of § 1915 applications is not always clear: “‘[T]here are no ‘magic formulas' for making the determination that the requisite in forma pauperis status is present, but instead, there is required a careful scrutiny and weighing of all of the relevant facts and circumstances involved in each particular situation.'” Carter v. Telectron, Inc., 452 F.Supp. 939, 942 (S.D. Tex. 1976) (quotation and internal citation omitted). In Carter, the district court, citing Adkins and cases in the Third and Fifth Circuits, set forth three legal tests that this court has also used to evaluate in forma pauperis applications, in exercising their discretion under 28 U.S.C. § 1915(a):
See e.g., Cabbil v. U.S., 2015 WL6905072 (D.S.C. Nov. 9, 2015), Stritzinger v. Delaware, 2015 WL 5965268 (D.S.C. Oct 13, 2015).
(1) Is the litigant “barred from the Federal Courts by reason of his impecunity?”
(2) Is his “access to the courts blocked by the imposition of an undue hardship?”
(3) Is the litigant “forced to contribute his last dollar, or render himself destitute to prosecute his claim?”452 F.Supp. at 943.
As has been noted many times, the “privilege to proceed without posting security for costs and fees is reserved to the many truly impoverished litigants who, within the District Court's sound discretion, would remain without legal remedy if such privilege were not afforded to them.” Brewster v. North American Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972); see also Failor v. Califano, 79 F.R.D. 12, 13 (M.D. Pa. 1978); and Thomas v. Califano, 79 F.R.D. 14, 14-15 & n.2 (M.D. Pa. 1978).
Upon a review of all the information before the Court, mindful of the tests set forth in Carter, it does not appear that Plaintiff would be barred from the federal courts because she simply does not have the money for the filing fee of $350.00, plus administrative fee of $52, nor that paying that fee would effectively block her access to the courts by imposing on her an “undue hardship,” nor that the fee would wring from Plaintiff her last dollar or essentially render her destitute. Hence, Plaintiff must “‘confront the initial dilemma which faces most other potential civil litigants: Is the merit of the claim worth the cost of pursuing it?'” Carter, 452 F.Supp. at 944 (internal citation omitted).
RECOMMENDATION
On the sole issue of this Report and Recommendation, it is recommended that the Application to Proceed Without Prepayment of Fees be denied. It is recommended upon adoption of this report and recommendation that Plaintiff be ordered to pay the full filing fee of $402 within 14 days of the order by the district judge.
Plaintiff's attention is directed to the important notice on the next page.
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 thise 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).