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Johnson v. James

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA
Jan 8, 2019
C/A: 3:18-3508-CMC-TER (D.S.C. Jan. 8, 2019)

Opinion

C/A: 3:18-3508-CMC-TER

01-08-2019

Michael T. Johnson, Sr. Plaintiff, v. Deborah Lee James, in her official capacity as, Secretary, United States Air Force, Defendant.


Report and Recommendation

The sole issue in this Report and Recommendation is whether Plaintiff should be required to pay the filing fee, or whether his financial condition justifies waiver of the filing fee.

Plaintiff has filed an Application to Proceed Without Prepaying Fees or Costs (long form), also known as an application to proceed in forma pauperis. In his application, Plaintiff states his household income is $14,298 monthly. He reports that he and his spouse have $200 in cash and his spouse has $1,700 total in various bank accounts. Household expenses are listed at $10,893 total per month. Some of these expenses include: $1,373 monthly for "timeshare/tithes/investments" and $551 total for life insurance.

Spousal income and spousal expenses are appropriate considerations in determining in forma pauperis status. See 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 after comparing spouse's monthly income of $5,000 to $4,625 total family expenses, with over $350 per month in discretionary income); 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 after comparing spouse's income of $2,300 to expenses of $1,098 with $384 in spouse's checking account);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)(finding plaintiff did not have to choose between abandoning claim or foregoing life necessities where plaintiff had income of $1,500, spouse had income of $2,800, and expenses totaled $3,679).

All of this information raises questions over the application to proceed without prepayment of fees. A litigant is not required to show that he 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).

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 he simply does not have the money for the filing fee of $350.00, plus administrative fee of $50, nor that paying that fee would effectively block his access to the courts by imposing on him an "undue hardship," nor that the fee would wring from him his last dollar or essentially render him 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).

It does not appear Plaintiff will have to choose between abandoning a potentially meritorious claim or foregoing the necessities of life.

RECOMMENDATION

On the sole issue of this Report and Recommendation, it is recommended that the Application to Proceed Without Prepayment of Fees be denied.

s/ Thomas E. Rogers, III

Thomas E. Rogers, III

United States Magistrate Judge January 8, 2019
Florence, South Carolina

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 there 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).


Summaries of

Johnson v. James

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA
Jan 8, 2019
C/A: 3:18-3508-CMC-TER (D.S.C. Jan. 8, 2019)
Case details for

Johnson v. James

Case Details

Full title:Michael T. Johnson, Sr. Plaintiff, v. Deborah Lee James, in her official…

Court:UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

Date published: Jan 8, 2019

Citations

C/A: 3:18-3508-CMC-TER (D.S.C. Jan. 8, 2019)

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