Opinion
EP-24-CV-00145-KC-ATB
05-08-2024
ZANDOR MARTINEZ, Plaintiff, v. MARTIN O'MALLEY, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION REGARDING MOTION TO PROCEED IN FORMA PAUPERIS
ANNE T. BERTON UNITED STATES MAGISTRATE JUDGE
Presently before the Court is Plaintiff Zandor Martinez's “Motion to Proceed In Forma Pauperis” (ECF No. 1) filed on April 29, 2024. In his underlying complaint attached to the motion, Martinez appeals, pursuant to 42 U.S.C. § 405(g), from the final decision of Defendant Acting Commissioner of the Social Security Administration denying his claims for disability benefits. Pursuant to 28 U.S.C. § 636(c), Appendix C of this District's Local Rules, and the Honorable District Judge Kathleen Cardone's (the referring court) standing order, the case was referred to the undersigned Magistrate Judge.
See https://www.txwd.uscourts.gov/wp-content/uploads/2022/12/Standmg-Order-Regardmg-Civil-Case-Assignments.pdf.
The federal in forma pauperis (IFP) statute, 28 U.S.C. § 1915, “is intended to provide access to federal courts for plaintiffs who lack the financial resources to pay any part of the statutory filing costs.” Prows v. Kastner, 842 F.2d 138, 140 (5th Cir. 1988). Under § 1915(a)(1), “the commencement or filing of the suit depends solely on whether the [plaintiff] is economically eligible.” Watson v. Ault, 525 F.2d 886, 891 (5th Cir. 1976); see also 28 U.S.C. § 1915(a)(1) (“[A]ny court of the United States may authorize the commencement . . . of any suit . . ., without prepayment of fees . . ., by a person who submits an affidavit that includes a statement of all assets such [person] possesses [and] that the person is unable to pay such fees . . . .”). “The only determination to be made by the court under § 1915(a), therefore, is whether the statements in the affidavit satisfy the requirements of poverty.” Watson, 525 F.2d at 891.
“Poverty sufficient to quali[f]y for IFP status does not require absolute destitution.” Ayers v. Texas Dep't of Crim. Just., 70 F.3d 1268, 1995 WL 696702, at *1 (5th Cir. 1995) (unpublished but precedential decision under Fifth Cir. R. App. P. 47.5.3, which provides, “[u]npublished opinions issued before January 1, 1996, are precedent”) (citing Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948)). “The central question is whether the [plaintiff] can afford the costs of proceeding without undue hardship or deprivation of the necessities of life.” Id. In addressing that question, courts consider, inter alia, “the [plaintiff's] present assets, reasonably contemplated periodic payments and future income, and the demands on an individual plaintiff's financial resources, including whether they are discretionary or mandatory.” Roden v. State of Texas, 58 F.3d 636 (5th Cir. 1995) (unpublished but precedential decision under Fifth Cir. R. App. P. 47.5.3) (citing Smith v. Martinez, 706 F.2d 572, 573 (5th Cir. 1983), and Prows, 842 F.2d at 140). In assessing the plaintiff's financial condition, courts “may look to where the litigant's reported income is in relation to applicable poverty guidelines.” Moates v. Biden, No. 6:22-CV-00626-ADA-JCM, 2022 WL 3566451, at *1 (W.D. Tex. June 29) (collecting cases; looking to the Department of Health & Human Services' Poverty Guidelines), R & R adopted, 2022 WL 18110176 (W.D. Tex. Oct. 18, 2022).
See also Prows, 842 F.2d at 140 (“To determine whether a particular order causes undue financial hardship, a court must examine the financial condition of the in forma pauperis applicant. This entails a review of other demands on individual plaintiffs' financial resources, including whether the expenses are discretionary or mandatory.”).
Here, the fee for filing a civil complaint, such as Martinez's, in the United States District Court for the Western District of Texas is $405. According to a standard-form affidavit that Martinez submitted in support of his motion, Martinez, who is 29 years old, owns a home valued at $293,000, has a vehicle (2013 model year) valued at $6,000, and has $450 in his bank account. Appl. to Proceed in Dist. Ct. Without Paying Fees or Costs at 2-3, 6 [hereinafter, “Appl.”], ECF No. 1. His total monthly income is $3,700, all of which is from one or more retirement sources of income, and his total monthly expenses are $4,123. Id. at 2, 5. Thus, his monthly expenses exceed his monthly income by approximately $425. However, based on the information provided in his affidavit, several of Martinez's monthly expenses appear to be discretionary rather than mandatory: for example, $100 for home maintenance; $50 for laundry and drycleaning; $75 for transportation (which does not include any motor vehicle payments); and $432 for credit card and loan payments (he does not state what these payments are for). Id. at 4.
U.S. Dist. Ct. for W.D. Texas, Fee Schedule, https://www.txwd.uscourts.gov/court-information/fee-schedule/ (last visited May 6, 2024).
Martinez's affidavit indicates that he is a “100% disabled” veteran. Appl. at 5.
See also, e.g., Escalante v. O'Malley, No. EP-23-CV-00464- RFC, 2024 WL 502319, at *2 (W.D. Tex. Jan. 4, 2024) (finding applicant's expenses for home maintenance and for laundry and dry cleaning discretionary); Johnson v. Dep't of Com., No. 3:19-CV-611-L-BK, 2020 WL 2616519, at *1 (N.D. Tex. Feb. 21) (same); Fiedler v. Bridely, No. 4:17CV75-ALM-KPJ, 2017 WL 1829079, at *1 (E.D. Tex. Apr. 5, 2017) (same); Alvarez v. Tex. Workforce Comm'n, No. EP-23-CV-00147-DCG, 2023 WL 3046607, at *2 (W.D. Tex. Apr. 20, 2023) (finding expenses for credit card and loan payments discretionary); Ramsey v. NFI Indus., No. 3:21-CV-3217-S-BH, 2022 WL 707234, *1 (N.D. Tex. Feb. 18, 2022) (observing that “[s]ome monthly expenses, such as recreation and credit cards, appear to be discretionary”); Nelson v. Louise, No. CIV.A. 10-827-RET, 2011 WL 3648632, at *1 n.5 (M.D. La. July 27) (considering credit card debts to be discretionary reasoning that “there is no indication on his affidavit that these are mandatory expenses”); Raymond v. Dep't of the Army, No. SA-09-CV-00279-OLG, 2009 WL 10699494, at *1 (W.D. Tex. May 1, 2009) (observing that expenses for lawn care, personal grooming, parking, among others, appear to be discretionary).
Further, although Martinez does not expressly state whether he is married or has children that depend on him, his responses to some of the questions on the standard-form affidavit suggest that he is married but has no children. The applicable poverty guideline for a family of two is $20,440. See U.S. Dep't of Health & Hum. Servs., Office of Assistant Sec'y for Planning & Evaluation, HHS Poverty Guidelines for 2024, https://aspe.hhs.gov/topics/poverty-economic-mobility/poverty-guidelines (last visited May 6, 2024). And his annual income is $44,400. See Appl. at 2 (stating monthly income is $3,700). As such, Martinez's annual income is well above the poverty guideline.
See, e.g., Appl. at 2 (stating “none” under “employer” and “$0.00” under “gross monthly pay” in response to a question that instructs him to list information about his spouse's employment); id. at 3 (stating “none” in response to a question that instructs him to state the persons who rely on him or his spouse for support); id. at 4 (stating “$0.00” in response to a question that instructs him to itemize any expenses for “support paid to others”).
Consequently, the Court finds that Martinez has not shown that he will suffer undue financial hardship or be deprived of the necessities of life after payment of the $405 filing fee and concludes that his motion to proceed IFP should be denied. See Moates, 2022 WL 3566451, at *1 (denying plaintiff's motion to proceed IFP, finding that his “financial affidavit shows he has resources to pay the filing fee” because his annual household income is well above the poverty guideline and he “has additional resources of $122 in a checking or savings account”). Still, because Martinez has only $450 in his bank account, see Appl. at 2, the Court, out of an abundance of caution, recommends that Martinez be allowed to pay the $405 filing fee in three consecutive monthly installments in the amount of $135 each.
Accordingly, IT IS RECOMMENDED that Plaintiff Zandor Martinez's “Motion to Proceed in Forma Pauperis” (ECF No. 1) be DENIED.
See Lister v. Dep't Of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (observing that “[o]ur sister circuits have held that magistrate judges have no authority to enter an order denying IFP status” (citing, among others, Donaldson v. Ducote, 373 F.3d 622, 623-25 (5th Cir. 2004)); id. (stating that because denial of plaintiff's motion for leave to proceed IFP “was a dispositive matter, . . . the magistrate judge should have only issued a report and recommendation for a decision by the district court”); see also Donaldson, 373 F.3d at 625 (stating that because the district court had not entered a final, appealable order adopting the magistrate judge's order certifying that the appeal was not taken in good faith and plaintiff had not consented to the magistrate judge's jurisdiction to enter a final judgment on his right to appeal IFP, the appellate court lacked “jurisdiction over [the plaintiff's] motion to proceed IFP,” which the magistrate denied but the district court had not reviewed, and remanding the case to the district court for the limited purpose of reviewing the magistrate judge's certification order and entering an appropriate order).
IT IS FURTHER RECOMMENDED that Martinez be ordered to pay the filing fee in three (3) consecutive monthly installments, each in the amount of $135, with the first installment being due within ten (10) days after the referring court's order regarding this Report and Recommendation.
IT IS FINALLY ORDERED that the Clerk's Office SHALL NOT DOCKET Plaintiff
Martinez's complaint (ECF No. 1-1) UNTIL further order of the referring court or the undersigned Magistrate Judge; this order however does not preclude the docketing of the complaint upon Martinez's full payment of the filing fee in the interim.
Cf. Allen v. Atlas Box & Crating Co., 59 F.4th 145, 149 (4th Cir. 2023) (“[O]nly the judge's order permitting the plaintiff to proceed in forma pauperis, and accepting the papers for filing, would commence the action.”)
So ORDERED and SIGNED
NOTICE
FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS CONTAINED IN THE FOREGOING REPORT, WITHIN FOURTEEN DAYS OF SERVICE OF SAME, MAY BAR DE NOVO DETERMINATION BY THE DISTRICTJUDGE OF AN ISSUE COVERED HEREIN AND SHALL BAR APPELLATE REVIEW, EXCEPTUPON GROUNDS OF PLAIN ERROR, OF ANY UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS AS MAY BE ACCEPTED OR ADOPTED BY THE DISTRICTCOURT.