Opinion
Civil Action No. 18-1632
12-21-2018
BLAINE KOBY GHOLSON, Plaintiff, v. REBECCA ANDREWS and ZACHARY KENNEDY, Defendants.
Judge Arthur J. Schwab/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 has more than sufficient funds in his inmate account to pay the entire filing fee with substantial amounts remaining for his personal needs.
II. REPORT
Blaine Koby Gholson ("Plaintiff"), is pro se litigant, currently housed in the State Correctional Institution at Pine Grove ("SCI-Pine Grove"). Plaintiff has filed an IFP Motion, ECF No. 1, in order to prosecute a prisoner civil rights complaint. However, because Plaintiff has consistently had a balance of over $3,000.00 in his inmate account from November 1, 2017, id. at 3, up until October 19, 2018, id. at 14, 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.
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 a balance of $2,013.20, as of November 30, 2018, the last date available from the inmate account statement and only five days after Plaintiff signed his IFP Motion. We judge Plaintiff to have sufficient funds 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: December 21, 2018 cc: The Honorable Arthur J. Schwab
United States District Judge
BLAINE KOBY GHOLSON
HJ 8101
SCI PINE GROVE
191 FYOCK ROAD
INDIANA, PA 15701