Opinion
SA-21-CV-01288-FB
01-24-2022
DONALD C. HOSKINSON, Plaintiff, v. JAMES CHATHAM, JOYCE CHATHAM, DEANNA L. RECTOR-HOSKINSON, Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge Fred Biery:
This Report and Recommendation concerns Plaintiff's pro se Application to Proceed in District Court without Prepaying Fees or Costs [#1] and Motion to Appoint Counsel [#3]. This case was automatically referred to the undersigned upon filing, and the undersigned has authority to enter this report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). By his motions, Plaintiff seeks leave to proceed in forma pauperis (“IFP”) based on his inability to afford court fees and costs and requests the appointment of an attorney to represent him in this case. Having considered the motion and documentation provided by Plaintiff, the undersigned recommends the Court deny Plaintiff's motion to proceed IFP and leave his motion to appoint counsel pending.
I. Analysis
All parties instituting any civil action, suit, or proceeding in a district court of the United States, except an application for a writ of habeas corpus, must pay a filing fee of $350, as well as an administrative fee. See 28 U.S.C. § 1914(a). When faced with a request to proceed IFP, courts must examine the financial condition of the applicant to determine whether the payment of fees would cause an undue financial hardship. Prows v. Kastner, 842 F.2d 138, 140 (5th Cir. 1988). The district court exercises discretion in determining whether to extend the privilege of IFP status to plaintiffs who are unable to pay filing fees. Wickerham v. Waterman, No. SA-14-CA-766-XR, 2014 WL 5469816, at *4 (W.D. Tex. Oct. 28, 2014) (citing Startti v. United States, 415 F.2d 1115, 1116 (5th Cir. 1969)). In doing so, the Court must examine the demand on plaintiff's financial resources, including whether his expenses are discretionary or mandatory. Prows, 842 F.2d at 140. Although one need not be absolutely destitute to enjoy the benefit of IFP status, an application to proceed IFP is only sufficient if it indicates that the plaintiff truly cannot, because of poverty, afford to pay for the costs of litigation and still provide for himself and his dependents. Adkins v. E. I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948).
The administrative fee, which is currently $50, is waived for plaintiffs who are granted IFP status. SeeDistrictCourtMiscellaneousFeeSchedule, available at http://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule.
Plaintiff's motion to proceed IFP indicates that he is currently incarcerated in the Virginia Department of Corrections, Nottoway Correctional Center, and that the balance in his prison account is $633.72. This information reflects that Plaintiff has sufficient funds in his prison account to pay the filing fee. Plaintiff has not established that he cannot, due to poverty, afford the court costs associated with this lawsuit, and Plaintiff should be required to pay these costs. Upon payment of the full filing fee, the Court will consider Plaintiff's motion for the appointment of counsel.
II. Conclusion and Recommendation
The hereby recommends that Plaintiff's pro se Application to Proceed in District Court without Prepaying Fees or Costs [#1] be DENIED. Plaintiff should be directed to either pay the filing fee or face dismissal of his Complaint for failure to prosecute or failure to comply with the orders of this Court. See Fed. R. Civ. P. 41(b).
III. Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The party shall file the objections with the clerk of the court, and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive, or general objections. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149- 52(1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).