Opinion
C. A. 3:20-3103-MGL-SVH
08-31-2020
Diana Jordan, Plaintiff, v. Leon Lott and Howard Hughes, Defendants.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE
Diana Jordan (“Plaintiff”), proceeding pro se, filed this action against Leon Lott and Howard Hughes (“Defendants”) for alleged civil rights violations. [ECF No. 1]. All pretrial proceedings in this matter were referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.). For the reasons that follow, the undersigned recommends the district judge deny Plaintiff's motion to proceed in forma pauperis [ECF No. 2].
I. Background
Plaintiff submitted a short form application to proceed in district court without prepaying fees or costs (“Form AO-240”). [ECF No. 2]. In the Form AO-240, Plaintiff states she is unemployed. Id. at 1. She indicates she receives $355 monthly through the Supplemental Nutrition Assistance Program and $600 annually for utility assistance. Id. Plaintiff indicates she has $10 in a checking or savings account and has a vehicle valued at $800. Id. at 2. She indicates the value of her home is unknown and that she has appealed the Richland County Assessor's Value in Fall 2019. Id. However, in her prior four cases brought in the same month, Plaintiff stated her home was valued at $120,000. Id. She states she owes $362.75 in past due utility bills and $156.14 for water. Id. In addition, Plaintiff says she owes $1,089 to her homeowners' association. Id. Plaintiff lists one dependent. Id.
II. Discussion
Grants or denials of applications to proceed in forma pauperis are left to the discretion of federal district courts. See Di lard v. Liberty Loan Corp., 626 F.2d 363, 364 (4th Cir. 1980). There is no clear precedent in the Fourth Circuit concerning a magistrate judge's authority to issue an order denying an application to proceed in forma pauperis. The Sixth Circuit has concluded that a magistrate judge cannot issue an order to deny an application to proceed in forma pauperis. Woods v. Dahlberg, 894 F.2d 187 (6th Cir. 1990). Specifically, the Woods court ruled a denial of an application to proceed in forma pauperis by a magistrate judge is the functional equivalent of an involuntary dismissal, which cannot be granted by a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A). Id. at 187. The Tenth and Fifth Circuits have reached similar conclusions. See Lister v. Dep't of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005); Donaldson v. Ducote, 373 F.3d 622, 623-25 (5th Cir. 2004). Therefore, the undersigned submits a report and recommendation to preserve Plaintiff's opportunity to obtain de novo review by a district judge on objections.
The Fourth Circuit has held that, absent consent to the jurisdiction of the magistrate judge, proper review of a magistrate judge's denial of a motion to proceed in forma pauperis is in the district court. Gent v. Radford Univ., No. 99-1431, 1999 WL 503537, at *1 (4th Cir. July 16, 1999). The court did not specify the standard of review. Id.
A litigant is not required to show 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, 339-40 (1948). However, the “privilege to proceed without posting security for costs and fees is reserved to the many truly impoverished litigants who . . . would remain without legal remedy if such privilege were not afforded to them.” Brewster v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). In Carter v. Telectron, Inc., 452 F.Supp. 939 (S.D. Tex. 1976), the court enunciated three legal tests used to determine whether a person should proceed in forma pauperis under 28 U.S.C. § 1915:
(1) Is the litigant barred from the federal courts by the reason of her “impecunity”?
(2) Is her access to the courts blocked by the imposition of an undue hardship?
(3) Is the litigant forced to contribute her last dollar, or render herself destitute, to prosecute her claim?
Id. at 943; see also Murray v. Gossett, C/A No. 3:13-2552-CMC-SVH, 2013 WL 5670907, at *2 (D.S.C. Oct. 17, 2013) (adopting and incorporating Report and Recommendation).
Reviewing the information before the court, and considering the tests set forth in Carter, the undersigned recommends the court deny Plaintiff's motion. While Plaintiff indicates she is unemployed, it appears the Richland County Assessor's office has valued her home at $120,000. It, therefore, does not appear Plaintiff will have to choose between abandoning a potentially meritorious claim or foregoing the necessities of life to pay the $400 filing fee. Adkins, 335 U.S. at 339 (1948); see also, Karahalios v. Horry County Council, No. 4:17-cv-00393, 2017 WL 1223697 (D.S.C. 2017). It also does not appear that paying the fee would render Plaintiff destitute or impose an undue hardship or effectively block Plaintiff's access to the courts.
Plaintiff is a frequent filer of federal lawsuits and filed at least twenty-four lawsuits in 2018-19. In the 20 days preceding this order, Plaintiff filed five lawsuits. The court granted Plaintiff in forma pauperis status in eight of her cases, and each case was summarily dismissed or recommended for summary dismissal, for failure to state a claim upon which relief may be granted. Plaintiff has repeatedly been informed, through reports and recommendations, that federal courts are courts of limited jurisdiction. Plaintiff, however, persists in filing lawsuits, such as the one currently under review, that are facially inadequate to state plausible federal claims, placing an unreasonable demand on limited judicial resources. The right to proceed in forma pauperis is not without limitations and Plaintiffs continued filing of frivolous cases further supports the denial of her in forma pauperis application. See Free v. United States, 879 F.2d 1535, 1536 (7th Cir. 1989) (“Abusers of the judicial process are not entitled to sue . . . without paying the normal filing fees.”).
Although Plaintiff generally claims Defendants have violated her civil rights, she alleges only that they have failed to investigate or prosecute others. Plaintiff has no legal protected interest in the prosecution of others. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[I]n American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”).
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge deny Plaintiffs motion to proceed in forma pauperis [ECF No. 2].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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
901 Richland Street
Columbia, South Carolina 29201
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).