Opinion
Civil Action No. 01-2092-KHV.
April 10, 2001.
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff's Notice Of Appeal Of A Magistrate Order And Request For An Automatic Stay Of That Order (Doc. #8) filed March 12, 2001. On March 2, 2001, United States Magistrate Judge David J. Waxse overruled plaintiff's request for leave to proceed in forma pauperis. See Order (Doc. #6). Judge Waxse ordered plaintiff to pay the $150.00 filing fee no later than March 19, 2001. See id. at 2. Plaintiff appeals that order and asks the Court to stay the requirement that plaintiff must pay the filing fee by March 19, 2001.
The Court reviews Judge Waxse's order under a "clearly erroneous or contrary to law" standard of review. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). After stating the applicable legal standards, Judge Waxse noted that (1) plaintiff receives $1,220 per month in Social Security and VA benefits compared to expenses of approximately $848 per month; (2) plaintiff received an undisclosed amount of money in a settlement last August and October; (3) plaintiff had $152 cash on hand at the time he filed his affidavit; and (4) plaintiff has $44,000 of equity in his home, which he estimates is worth $63,500. See Order (Doc. #6) at 2.
Plaintiff first argues that Judge Waxse erred because plaintiff's total income is below the federally defined poverty threshold. Plaintiff's income is a relevant factor, but Judge Waxse found that it was not dispositive in this case. In particular, plaintiff's monthly benefits are approximately $372 more than his monthly expenses. Plaintiff also has $44,000 of equity in his home and he recently received an undisclosed amount of money. Based on these additional factors, the magistrate's ruling is not clearly erroneous or contrary to law. See, e.g., Buggs v. Riverside Hosp., No. 97-1088-WEB, 1997 WL 321289, at *1 (D.Kan. Apr. 9, 1997) (plaintiff with monthly income $384 more than her monthly expenses denied in forma pauperis status); Ireland v. Reliance Std. Life Ins. Co., No. 97-0563-THE, 1997 WL 85008, at *1 (N.D.Cal. Feb. 21, 1997) (plaintiff who was unemployed with no money in bank account denied in forma pauperis status because she had $60,000 of equity in her home); Doyle v. Warner Pub. Servicers, Inc., No. 87-C-4154, 1988 WL 67633, at *1 (N.D.Ill. June 22, 1988) (plaintiff who earned a "minimal amount" with $400 in the bank denied in forma pauperis status in part because he had home worth $50,000 with no indication of amount of equity in home); Failro v. Califano, 79 F.R.D. 12, 13 (M.D.Pa. 1978) (plaintiff who earned $409 per month denied in forma pauperis status because she owned home worth $20,000); see also Barnett v. Northwest Sch., No. 00-2499-KHV, 2000 WL 1909625, at *1 (D.Kan. Dec. 26, 2000) (in civil cases for damages, in forma pauperis privilege should be granted "sparingly"); Forrester v. Via-Christi-St. Joseph ITS Reps., No. 97-1243-MLB, 1997 WL 557329, at *1 (D.Kan. June 10, 1997) (same).
Since January 1, 2000, plaintiff has been denied in forma pauperis status in two other cases. See Order (Doc. #4) filed March 1, 2001 in Scherer v. UMKC School of Law, No. 01-2085-JWL (D.Kan.); Order (Doc. #6) filed January 7, 2000 in Scherer v. Bioff, Singer Finuacane, No. 99-2566-GTV (D.Kan.).
Plaintiff next argues that Judge Waxse erred because liquidation of the equity in his personal residence or other assets would be an undue burden. Nothing in the magistrate's order requires plaintiff to liquidate his assets. Judge Waxse noted that plaintiff's monthly benefits are approximately $372 more than his monthly expenses. In addition, the fact that plaintiff has equity in his home is an appropriate factor to determine whether he is able to pay the filing fee. See Wheeler v. Wichita Police Dep't, No. 97-1076-FGT, 1997 WL 109694, at *1 (D.Kan. Feb. 27, 1997); Ireland, 1997 WL 85009, at *1; Doyle, 1988 WL 67633, at *1; Failro, 79 F.R.D. at 13.
Plaintiff also states that he "constructively filed" bankruptcy petitions, that he has incurred "significant net operating losses" over the past few years, and that his "debts exceed his net worth." Plaintiff did not present these arguments in his original motion. In addition, plaintiff's assertions are too vague for the Court to conclude that he is unable to pay the $150 filing fee.
Plaintiff next argues that Judge Waxse did not have authority to decide the in forma pauperis motion because a district judge had not designated him to proceed under 28 U.S.C. § 636(b)(1). A district judge "may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action." 28 U.S.C. § 636(b)(1)(A). Pursuant to D. Kan. Rule 72.1.2, all civil cases are assigned to a magistrate judge for "pretrial, procedural and discovery" matters unless a district judge specifically reserves any such matters for his or her own consideration. Because the undersigned judge did not reserve plaintiff's in forma pauperis motion for her own consideration, the motion was properly assigned to Judge Waxse pursuant to local rule.
Finally, plaintiff argues that Judge Waxse did not have authority to decide the in forma pauperis motion because the parties did not consent to a magistrate under 28 U.S.C. § 636(c)(2). Section 636(c) applies to the referral of matters such as trial and the entry of judgments. Nothing in Section 636(c) limits a magistrate judge's authority to decide non-dispositive matters under 28 U.S.C. § 636(b)(1)(A).
Plaintiff asks the Court for an automatic stay of the magistrate's order under Rule 74(b), Fed.R.Civ.P., a rule no longer in effect. In any case, based on plaintiff's appeal of the magistrate's order, the Court finds that a brief extension of the deadline to pay the filing fee is warranted.
IT IS THEREFORE ORDERED that plaintiff's Notice Of Appeal Of A Magistrate Order And Request For An Automatic Stay Of That Order (Doc. #8) filed March 12, 2001 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that on or before April 18, 2001, plaintiff shall pay the $150.00 filing fee. If plaintiff does not pay the required fee by April 18, 2001, the Court will dismiss the case without prejudice.