Opinion
EP-23-CV-00384-KC-MAT
11-22-2023
KEITH SHANNON, Plaintiff, v. OMNI LOGISTICS LLC, Defendant.
REPORT AND RECOMMENDATION
MIGUEL A. TORRES UNITED STATES MAGISTRATE JUDGE
On this day, the Court considers Plaintiff Keith Shannon's (“Plaintiff”) “Application to Proceed in District Court Without Prepaying Fees or Costs” (“Motion to Proceed In Forma Pauperis” or “Motion”). (ECF No. 1). On October 17, 2023, the Honorable Kathleen Cardone, United States District Judge, referred the Motion to the undersigned. For the following reasons, the Court recommends that the Motion be DENIED.
Although the Motion was referred to the undersigned for determination (ECF No. 6, p. 1), the Court issues a report and recommendation because there is disagreement among courts as to whether a magistrate judge may deny a motion to proceed in forma pauperis in a final order. See Wilson v. Becker, No. 07-7157, 2008 WL 81286, at *1 (E.D. La. Jan. 7, 2008) (collecting cases). While the Fifth Circuit has not directly addressed this issue, the circuits that have “have declared that denial of a motion to proceed in forma pauperis is ‘the functional equivalent of an involuntary dismissal and is outside the scope of a magistrate's authority.'” Herman v. Comm'r of Soc. Sec., No. 19-CV-107, 2019 U.S. Dist. LEXIS 147628, at *2 n.1 (N.D. Miss. Aug. 7, 2019) (quoting Woods v. Dahlberg, 894 F.2d 187, 187 (6th Cir. 1990)); see also Id. (first citing 28 U.S.C. § 636(b)(1)(B); then citing Tripati v. Rison, 847 F.2d 548 (9th Cir. 1988)); Lister v. Dep't of Treasury, 408 F.3d 1309, 1311-12 (10th Cir. 2005).
The purpose of the in forma pauperis (“IFP”) statute, 28 U.S.C. § 1915, is to ensure that indigent litigants have meaningful access to the federal courts. Neitzke v. Williams, 490 U.S. 319, 324 (1989). To proceed in a civil action without paying a filing fee is a “procedural privilege,” not an “absolute right.” Startti v. United States, 415 F.2d 1115, 1116 (5th Cir. 1969) (per curiam). Courts have discretion to grant or deny an IFP application. Id.
Although the statute is titled the “Prison Litigation Reform Act” (“PLRA”) and uses the term “prisoner,” some of its provisions also apply to non-prisoners, like Plaintiff here. See Haynes v. Scott, 116 F.3d 137, 139-40 (5th Cir. 1997) (“There is no indication in the statute or the legislative history of the PLRA that Congress meant to curb [IFP] suits by nonprisoners.... [T]he PLRA requires all petitioners to file an.
Courts review IFP applications to determine whether payment of filing fees would cause the applicant undue financial hardship. Prows v. Kastner, 842 F.2d 138, 140 (5th Cir. 1988); see also Mitchell v. Champs Sports, 42 F.Supp.2d 642, 648 (E.D. Tex. 1998) (“While one need not be absolutely destitute to qualify for in forma pauperis status, such benefit is allowed only when a movant cannot give such costs and remain able to provide for herself and her dependents.”). Courts must consider whether the applicant's claimed expenses are “discretionary or mandatory.” Prows, 842 F.2d at 140. Courts may also “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, 2022), report and recommendation adopted, 2022 WL 18110176 (W.D. Tex. Oct. 18, 2022).
According to Plaintiff's Application, Plaintiff is currently unemployed and thus does not earn any income. (ECF No. 1, at 1-2). He incurs approximately $900 in monthly expenses. Id. at 2. Plaintiff claims to have $20,000 as cash or in a checking or savings account. Id. Additionally, Plaintiff does not support any dependents. Id.
Plaintiff notes that he has student loans in the amount of $17,000 and $20,000 but does not indicate his monthly expense for student loan payments. (ECF No. 1, at 2).
Considering Plaintiff's Application and the federal poverty guidelines, Plaintiff has not shown that payment of the $402 filing fee would cause him undue financial hardship. The Court notes that Plaintiff's annual income is below the federal poverty guideline for a household of one. See Annual Update of the HHS Poverty Guidelines, 88 Fed.Reg. 3424 (Jan. 19, 2023) (setting an affidavit complying with section 1915(a)(1), but only prisoners must satisfy the requirements of sections 1915(a)(2) and 1915(b).”); Newsome v. E.E.O.C., 301 F.3d 227, 231-33 (5th Cir. 2002) (per curiam) (affirming dismissal of non-prisoner claims under 28 U.S.C. § 1915(e)(2)). annual income of $14,580 as the poverty threshold for a family of one in the forty-eight contiguous states and the District of Columbia). “An IFP applicant's income relative to the poverty guidelines, however, is not dispositive; courts must place that information in the context of the applicant's overall financial resources.” Berrios v. Magnus, 2022 WL 5287782, at *2 (W.D. Tex. Oct. 6, 2022) (citing McKinley v. County of Fresno, No. 1:21-cv-00754-NONE-SAB, 2021 WL 3007162, at *1 (E.D. Cal. July 15, 2021)). In Berrios, the court upheld the denial of an IFP application where the plaintiff's reported monthly expenses exceeded their monthly income. Id. at 2. The Court reasoned that the decision was not clearly erroneous, despite this “income-to-expenses ratio,” because the plaintiff also had $25,000 in a bank account and “courts are to consider income in the context of overall expenses and other factors, including savings and debts.” Id. Similarly, Plaintiff reports $20,000 available in a checking or savings account. (ECF No. 1, at 2). Therefore, considering Plaintiff's income in the context of overall expenses and reported savings, the Court finds that the information provided in the application shows that Plaintiff has sufficient resources available to pay the required $402 filing fee. Accordingly, Plaintiff's “Motion to Proceed In Forma Pauperis” is hereby denied.
IV. CONCLUSION
Accordingly, the Court RECOMMENDS that Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs (ECF No. 1) be DENIED.
The Court FURTHER RECOMMENDS that Plaintiff be ordered to pay the $402 filing fee within thirty (30) days after service of the District Judge's order on this Report and Recommendation, and that the Complaint (ECF No. 1-1) shall not be docketed until such payment is received.
The Court FINALLY RECOMMENDS that Plaintiff be CAUTIONED that failure to timely pay the filing fee may result in dismissal of the case pursuant to Fed.R.Civ.P. 41(b).
Should this Report and Recommendation be adopted, and Plaintiff's Motion denied, this Court will not have continuing authority to screen Plaintiff's Complaint pursuant to 28 U.S.C. § 1915(e)(2). See Woodall v. Foti, 648 F.2d 268, 271 (5th Cir. Unit A June 1981) (“This circuit has adopted a two-stage procedure for processing a prisoner's pro se civil rights complaint filed in forma pauperis under 28 U.S.C. [§] 1915. First, the district court should determine whether the plaintiff satisfies the economic eligibility criterion under section 1915(a). Upon a finding of economic justification, the court should allow the complaint to be docketed without prepayment of fees. Second, once leave has been granted, section 1915[(e)(2)] allows the district court to dismiss the complaint prior to service of process if it determines the complaint to be frivolous or malicious ....” (emphasis added)); see also Harris v. U.S. Dep't of Just., 680 F.2d 1109, 1111 (5th Cir. 1982) (“The District Court first decides whether the litigant meets the economic requirements to proceed in forma pauperis. Then, pursuant to [§] 1915[(e)(2)], the Court may dismiss the complaint if, upon giving it the liberal reading traditionally granted pro se complaints, it determines that it is unmeritorious, frivolous or malicious.” (citations omitted)).
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 DISTRICT JUDGE OF AN ISSUE COVERED HEREIN AND SHALL BAR APPELLATE REVIEW, EXCEPT UPON GROUNDS OF PLAIN ERROR, OF ANY UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS AS MAY BE ACCEPTED OR ADOPTED BY THE DISTRICT COURT.