Opinion
Civil Action 3:22-cv-00518-HTW-LGI
12-04-2023
CHOKWE LUMUMBA, et al. PLAINTIFFS v. RICHARD AMUN'RA BEY DEFENDANT
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
LAKEYSHA GREER ISAAC, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the Motion for Leave to Proceed In Forma Pauperis [2] filed by Defendant Richard Amun'Ra Bey. On September 7, 2022, Bey filed a Notice of Removal [1], along with his Motion for Leave to Proceed In Forma Pauperis [2]. After consideration of the record, relevant legal authority, and Defendant's submissions, the undersigned recommends that the Motion for Leave to Proceed in Forma Pauperis [2] be denied, and that this civil action be dismissed for failure to comply with this Court's orders.
In making the in forma pauperis (“IFP”) determination, the Court may consider the total monetary resources available to assist a party, usually Plaintiff. “There is no absolute right to be allowed to proceed in forma pauperis in civil matters; rather it is a privilege extended to those unable to pay filing fees when the action is not frivolous or malicious.” Startti v. United States, 415 F.2d 1115, 1116 (5th Cir. 1969). 28 U.S.C. § 1915(a)(1) is designed to provide access to federal courts for plaintiffs lacking the financial resources to pay any part of the statutory filing fees. See McDaniel v. City of Hattiesburg Police Dep't, No. 2:21-cv-24-KS-MTP, 2021 U.S. Dist. LEXIS 118625,2021 WL 260459 (S.D. Miss May 6, 2021); (citing Barnes v. Secretary, Dept. of Treasury, No. 3:10-cv-477-HTW-LRA, 2010 U.S. Dist. LEXIS 112349, 2010 WL 4220422 (S.D.Miss. Sept. 16, 2010).
The Court must examine the applicant's financial condition to determine whether the payment of fees would cause an undue financial hardship. Prows v. Kastner, 842 F.2d 138, 140 (5th Cir. 1988). “There is authority for the proposition that the privilege of proceeding in forma pauperis in civil actions for damages should be allowed only in exceptional circumstances.” Williams v. Beau Rivage, No. 1:09-cv-272-HSO-JMR, 2009 U.S. Dist. LEXIS 102760, 2009 WL 3431457 (S.D.Miss. Oct. 23, 2009). “The granting or denying of in forma pauperis proceedings of a civil nature is left to the sound discretion of the District Court.” Id. (citing Willard v. United States, 299 F.Supp. 1175, 1177 (N.D. Miss. 1969)).
On September 7, 2022, Defendant submitted a Long Form Application to Proceed in District Court Without Prepaying Fees, wherein he responded to each inquiry with “N/A” - not applicable. Doc. [2]. He also explained that he cannot pay the costs of these proceedings, because “the federal government is responsible for it.” Id. at 5, Inquiry No. 11. Upon consideration of the IFP Application, the Court determined that Defendant failed to provide substantive information, and it entered an Order [5] directing Defendant to file a completed Long Form Application by September 22, 2023 or pay the required filing fee. See Order [5]. The Order [5] also advised, among other things, that “failure to comply with any order of this Court . . . may result in denial of in forma pauperis status or dismissal of this matter.” Id. at 1-2.
Defendant failed to comply with the Order [5]. A review of the docket reveals that Defendant has not filed a completed Long Form Application, as directed by this Court. In fact, Defendant has filed no response to the Court's order. Thus, the Court has no financial information to determine Defendant's eligibility for in forma pauperis status. Under these circumstances, Defendant should not be permitted to proceed at taxpayer expense.
The Motion to Proceed in Forma Pauperis [2] should be denied for failure to provide sufficient information. Although Defendant submitted the correct Long Form Application to Proceed in District Court Without Prepaying Fees, he responded to each inquiry with “N/A” and provided no further information, such as his employment history, bank accounts, and assets. Such information is required by this Court, as enables the Court to review and determine an applicant's financial circumstances. See Long Form Application to Proceed in District Court Without Prepaying Fees or Costs (AO 239).
This Court requires that a plaintiff or petitioner file with the Court the Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form AO 239) and also answer certain financial questions under penalty of perjury. See https://www.uscourts.gov/forms/fee-waiver-application-forms/application-proceed-district-court-without-prepaying-fees-or.
The Court finds that the information provided is insufficient to properly examine Defendant's financial condition. The Court must examine the applicant's financial condition to determine whether the payment of fees would cause an undue financial hardship. Prows v. Kastner, 842 F.2d 138, 140 (5th Cir. 1988). “There is authority for the proposition that the privilege of proceeding in forma pauperis in civil actions for damages should be allowed only in exceptional circumstances.” Williams v. Beau Rivage, No. 1:09-cv-272-HSO-JMR, 2009 U.S. Dist. LEXIS 102760, 2009 WL 3431457 (S.D.Miss. Oct. 23, 2009). “The granting or denying of in forma pauperis proceedings of a civil nature is left to the sound discretion of the District Court.” Id. (citing Willard v. United States, 299 F.Supp. 1175, 1177 (N.D. Miss. 1969)). Defendant's Motion for Leave to Proceed in Forma Pauperis [2] should be denied.
Defendant's case should also be dismissed for failure to comply with this Court's orders. Defendant was warned that his failure to comply with this Court's orders could result in dismissal of this case. See Order [5]. Furthermore, Bey has a long history of failing to comply with this Court's orders to supplement his motions for IFP.
The Court points out that Bey has a history of filing lawsuits with this Court, wherein he has moved for IFP status but failed to adhere to the Court's orders to submit completed IFP applications and/or provide additional financial information. Bey's failure to comply resulted in denial of his motions for IFP status and sometimes dismissal of his cases. See Bey v. United States of America et al, 3:21-cv-00167-DPJ-FKB, Docket No. [16] (denying Bey's application for IFP and dismissing case without prejudice); see also Bey v. Boone et al, 3:21-cv-00504-DPJ-FKB, Docket No. [13] (Order adopting report and recommendation of Magistrate Judge to dismiss case for Bey's failure to comply with Court's order to supplement IFP application); see also Bey v. Dennis Sweet & Associates et al, 3:22-cv-00279-DPJ-FKB, Docket No. [13] (Order adopting report and recommendation of Magistrate Judge to dismiss case for Bey's failure to comply with Court's order to supplement IFP application); see also Bey v. Watson et al, 3:22-cv-00112-HTW-LGI, Docket No. [17] (Order adopting report and recommendation of Magistrate Judge to deny IFP motion and dismiss lawsuit for failure to comply with Court's order to supplement IFP application); see also Bey v. Thompson et al, 3:23-cv-00012-LG-BWR, Docket No. [29] (Order denying Plaintiff's Motion for Leave to Proceed IFP); see also Bey v. Howell et al, 3:23-cv-00081-LG-BWR, Docket No. [11] (Order denying Plaintiff's Motion for Leave to Proceed IFP), see also Magistrate Steven Boone et al v. Richard Amum'Ra Bey, 3:21-cv-00796-HTW-LGI, Docket No. [14], Report and Recommendation of Magistrate Judge, recommending that Plaintiff's Motion for Leave to Proceed in forma pauperis be denied and case be dismissed for failure to comply with Court's order to supplement IFP application).
RECOMMENDATION
Based on the above, the undersigned recommends that:
1. Defendant's Motion for Leave to Proceed In Forma Pauperis [2] be DENIED.
2. Since Defendant removed this case to this Court, that the action be dismissed, without prejudice, for Defendant's failure to comply with this Court's orders.
NOTICE OF RIGHT TO OBJECT
In accordance with the rules and 28 U.S.C. § 636(b)(1), any party may serve and file written objections within fourteen (14) days after being served a copy of this recommendation, with a copy to the District Judge, the Magistrate Judge and the opposing party. The District Judge at the time may accept, reject, or modify in whole or part, the recommendations of the Magistrate Judge, or may receive further evidence or recommit the matter to this Court with instructions. The parties are hereby notified that failure to file written objections to the proposed findings, conclusions, and recommendations contained within this report and recommendation within fourteen days after being served with a copy shall bar that party from attacking on appeal the proposed factual findings and legal conclusions accepted by the district court to which the party has not objected, except upon grounds of plain error. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
SO ORDERED.