Larkin v. Astrue

Full title: DIANE LARKIN, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social…

Court: United States District Court, M.D. Florida, Jacksonville Division

Date published: Apr 11, 2008

CASE NO. 3:07-cv-01208-J-32TEM (M.D. Fla. Apr. 11, 2008)

Opinion

CASE NO. 3:07-cv-01208-J-32TEM.

April 11, 2008

ORDER

THOMAS MORRIS, Magistrate Judge

This case is before the Court on Plaintiff's [Amended] Affidavit of Indigency (Doc. #7), which the Court construes as a motion to proceed in forma pauperis, and Plaintiff's Motion to Compel Service of Process (Doc. #8, Motion to Compel). For the following reasons, the Court finds that Plaintiff's motions are due to be denied.

Pursuant to 28 U.S.C. § 1915(a)(1), the Court may, upon a finding of indigency, authorize the commencement of an action without requiring the prepayment of costs, fees, or security. The Court's decision to grant in forma pauperis status is discretionary and should be granted only to those who are truly indigent. See Pace v. Evans, 709 F.2d 1428, 1429 (11^th Cir. 1983).

Here, Plaintiff's amended affidavit of indigency reveals she is widowed and currently employed at McDonald's earning $640 per month (Doc. #7 at 2). Plaintiff also receives $897 per month in Social Security Retirement and $10 monthly in welfare aid (Doc. #7 at 3-4). Plaintiff's amended affidavit further reveals that she pays $240 per month for her automobile and $45.45 per month to creditors (Doc. #7 at 4). The Court notes that Plaintiff failed to itemize any additional monthly household expenses for the Court to analyze, such as utility bills and groceries.

Plaintiff's amended affidavit also states that she has one dependent and contributes $907 per month to this dependent's support (Doc. #7 at 2). However, the Court notes that when describing the relationship to the dependent, Plaintiff listed "self" (Doc. #7 at 2). A dependent is "one who relies on another for support; one not able to exist or sustain oneself without the power or the aid of someone else." Black's Law Dictionary 470 (8th ed. 2004). The Court finds Plaintiff's statement regarding her dependent to be confusing. The Court is unable to ascertain if Plaintiff has a dependent and expends $907 per month to the dependent's support or if Plaintiff contributes $907 per month to support herself. If Plaintiff spends $907 monthly toward her own support, then there is an inconsistency with Plaintiff's assertions in her amended affidavit regarding monthly expenses because Plaintiff only itemized $285.45 per month in financial obligations.

Accordingly, the Court finds the current amended affidavit of indigency is incomplete. Plaintiff must provide additional information so that the Court may determine whether Plaintiff meets the financial criteria which would entitle a plaintiff to be eligible to proceed in forma pauperis. In an abundance of caution, the Court will permit Plaintiff to submit a second amended affidavit of indigency in this action.

The second amended affidavit of indigency shall contain complete details as to Plaintiff's financial resources and financial obligations. Pursuant to this Order, Plaintiff will be provided a blank Affidavit of Indigency form, DC 101 (Rev. 1/97). Plaintiff shall provide information for each category listed on the form and indicate all of her household expenses, including, but not limited to, groceries and utilities. Additionally, Plaintiff shall clarify whether she has a dependent and how much Plaintiff contributes per month to the support of her dependent. Plaintiff's Second Amended Affidavit of Indigency must be filed within 15 days of the date of this Order.

Concerning Plaintiff's Motion to Compel Service of Process (Doc. #8), the Court notes that Plaintiff maintains she has been granted in forma pauperis status by the Court (Doc. #8 at 2), and that the United States Marshals Service should be compelled to serve process upon the Defendants; however, this is simply not the case. The Court has yet to grant Plaintiff in forma pauperis status.

Accordingly, it is hereby ORDERED:

1. Plaintiff's motion to proceed in forma pauperis (Doc. #7) is denied without prejudice.

2. Plaintiff is directed to file a Second Amended Affidavit of Indigency not later than 15 days from the date of this Order. Plaintiff shall complete the Affidavit of Indigency form provided by the Clerk of Court, as denoted above.

3. The Clerk is hereby directed to mail Plaintiff the blank Affidavit of Indigency form, DC 101 (Rev. 1/97).

4. Plaintiff's Motion to Compel Service of Process (Doc. #8) is DENIED.

DONE AND ORDERED at Jacksonville, Florida.