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describing "denial of in forma pauperis status" as order on "pretrial matters"
Summary of this case from Hudgins v. ColvinOpinion
Case No. 01-2428-JWL
November 7, 2001
MEMORANDUM ORDER
This matter is before the court on plaintiff's Notice of Appeal of a Magistrate Order (Doc. 4) filed October 2, 2001. On September 24, 2001, United States Magistrate Judge James P. O'Hara denied plaintiff's request for leave to proceed in forma pauperis. See Order (Doc. 3). Judge O'Hara ordered plaintiff to pay the $150 filing fee no later than October 5, 2001. See id. at 3. Plaintiff appeals that order. Plaintiff's appeal is denied because he has not persuaded the court that the magistrate judge's order was wrong in concluding that he can afford to pay the filing fee.
With respect to a magistrate judge's order relating to non-dispositive pretrial matters, such as the denial of in forma pauperis status, the district court does not conduct a de novo review; rather, the court applies a more deferential standard by which the moving party must show that the magistrate judge's order is "clearly erroneous or contrary to law." Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1462 (10th Cir. 1988); 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). The clearly erroneous standard "requires that the reviewing court affirm unless it on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Ocelot Oil, 847 F.2d at 1464 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
After stating the applicable legal standard, Judge O'Hara's order provided the following reasons why plaintiff should not be entitled to in forma pauperis status: (1) plaintiff had $750 in checking and savings accounts at the time his application was filed; (2) plaintiff receives $1220 a month in Social Security and VA benefits compared to monthly obligations of $1159; (3) plaintiff owns a $65,000 house free and clear of any debt; (4) plaintiff owns two vehicles with a combined value of $3,600; (5) plaintiff received $67,000 from settlements in two cases this year; and (6) plaintiff's financial status has not significantly changed since the entry of a denial of in forma pauperis status in April, the last of four denials in this district this year.
See Order (Doc. 7) filed April 26, 2001 in Scherer v. Mission Bank, No. 01-4171-KHV; Order (Doc. 6) filed March 1, 2001 in Scherer v. City of Merriam, Kansas, No. 01-2092-KHV; Order (Doc. 4) filed March 1, 2001 in Scherer v. UMKC School of Law, No. 01-2085-JWL; and Order (Doc. 6) filed January 7, 2000 in Scherer v. Bioff, Singer Finuacane, No. 99-2566-GTV.
Plaintiff alleges that Judge O'Hara erred because plaintiff currently has $1,700 in debt and only $36 in cash, the court improperly alluded to plaintiff's previous settlement of other cases, the court improperly considered that plaintiff owns a $65,000 house and the court improperly considered that plaintiff has previously been denied in forma pauperis status. Taken as a whole, these arguments do not persuade this court that Judge O'Hara made a mistake in his conclusion to deny plaintiff in forma pauperis status. Judge O'Hara's order is consistent with this district's position that in civil cases for damages, in forma pauperis status should be granted "sparingly." Barnett v. Northwest Sch., No. 00-2499-KHV, 2000 WL 1909625, at *1 (D.Kan. Dec. 26, 2000); Forrester v. Via-Christi-St. Joseph ITS Reps., No. 97-1243-MLB, 1997 WL 557329, at *1 (D.Kan. June 10, 1997). The court believes that plaintiff can afford court costs of $150 without any undue hardship. In other cases, plaintiffs with similar or poorer economic conditions were consistently denied in forma pauperis status. Wheeler v. Wichita Police Dep't, No. 97-1076-FGT, 1997 WL 109694, at *1 (D.Kan. Feb. 27, 1997) (plaintiff did not qualify for in forma pauperis status despite barely being able to pay for expenses because plaintiff owned a car worth $7,000); 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); Failor 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).
Additionally, the court does not find plaintiff's arguments persuasive. Plaintiff alleges that Judge O'Hara erred because the court improperly considered the denial of previous in forma pauperis status requests. While it is true that past decisions are not determinative of one's financial status and the court should redetermine in forma pauperis status each time a new petition is filed, see Holmes v. Hardy, 852 F.2d 151 (5th Cir. 1988), cert. denied, 488 U.S. 931, 109 S.Ct. 322, that is precisely what Judge O'Hara did here. Judge O'Hara's order thoroughly examined plaintiff's present economic condition and then alluded to the fact that plaintiff's present economic condition had not materially changed since the last time he had been denied in forma pauperis status.
This leads the court to plaintiff's next dispute with the magistrate judge's order. Plaintiff alleges that his economic condition has materially changed since his last in forma pauperis status request in April. He alleges that he has incurred substantial litigation costs, including over $1,700 in debt, and that he now has only $36 in cash. According to plaintiff's application, Judge O'Hara accurately stated that plaintiff had $750 in his checking and savings accounts combined. The $1,700 in debt was not listed on plaintiff's application. Moreover, such a vague assertion is not sufficient to persuade the court that he cannot pay a $150 filing fee. Finally, the court cannot help but note that in an April 10, 2001 order by Judge Vratil denying Mr. Scherer in forma pauperis status, Mr. Scherer had $44,000 of equity in his house. According to his application, he now owns the $65,000 house outright. The addition of $21,000 in equity in his home since April solidifies this court's belief that Mr. Scherer can pay the $150 filing fee.
Plaintiff next alleges that Judge O'Hara erred by considering the value of plaintiff's house because he has not been able to obtain a loan against the house. The fact that a plaintiff has equity in his home, however, is an appropriate factor to determine whether he is able to pay a filing fee. Wheeler v. Wichita Police Dep't, No. 97-1076-FGT, 1997 WL 109694, at *1 (D.Kan. Feb. 27, 1997); Ireland v. Reliance Std. Life Ins. Co., No. 97-0563-THE, 1997 WL 85008, at *1 (N.D.Cal. Feb. 21, 1997); Failor v. Californo, 79 F.R.D. 12, 13 (M.D.Pa. 1978).
Plaintiff next alleges that Judge O'Hara erred by alluding to plaintiff's settlement of prior cases because that money was for plaintiff's disabilities and the money is not considered an asset. Plaintiff's conclusory allegation that the money cannot be considered is not founded on any legal precedent, but instead, on his own opinion. Judge O'Hara correctly analyzed plaintiff's current economic condition in an attempt to determine if he could pay the $150 filing fee. Regardless, Judge O'Hara provided other adequate reasons why plaintiff can afford to pay the filing fee.
Plaintiff also argues that the inconsistent decisions by courts concerning his in forma pauperis status requests establishes that the decisions are arbitrary and capricious. This argument has no bearing on the present issue of whether plaintiff can pay his filing fee.
Based on the factors Judge O'Hara relied on in his order, and upon careful review of plaintiff's application and appeal, the court finds that the magistrate judge's order is not clearly erroneous or contrary to law.
IT IS THEREFORE ORDERED that plaintiff's Notice of Appeal of a Magistrate Order (Doc. 4) filed October 2, 2001 is denied. It is further ordered that plaintiff shall pay the $150 filing fee on or before November 16, 2001, or the Court will dismiss the case without prejudice.
IT IS SO ORDERED