Opinion
NO. 3-05-CV-0107-N.
February 15, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Sam B. Tawadrous, appearing pro se, has filed a motion to proceed in forma pauperis in this Title VII national origin discrimination case. For the reasons stated herein, the motion should be denied.
I.
Plaintiff has been employed by the Internal Revenue Service as a Revenue Agent for 22 years. During this entire time, plaintiff has been classified as a "Grade 9" employee for pay purposes. Plaintiff now contends that he has been denied a pay increase "because I am a foreigner." On January 18, 2005, plaintiff tendered a one-page handwritten complaint to the district clerk and filed a motion to proceed in forma paupers. Process has been withheld pending a determination of the motion.
II.
A district court may authorize the commencement of a civil action without the prepayment of fees or costs "by a person who makes an affidavit that he is unable to pay such costs or give security therefor." 28 U.S.C. § 1915(a)(1). The court must examine the financial condition of the applicant in order to determine whether the payment of fees would cause an undue financial hardship. Prows v. Kastner, 842 F.2d 138, 140 (5th Cir.), cert. denied, 109 S.Ct. 364 (1988). A court enjoys limited discretion to grant or deny in forma pauperis status based on the financial resources of the litigant. See Adkins v. E.I. Du Pont De Nemours Co., 335 U.S. 331, 337, 69 S.Ct. 85, 88, 93 L.Ed. 43 (1948).
Plaintiff has submitted an affidavit which states that he is unable to pay the costs of maintaining this action. However, plaintiff currently earns $2,800 per month in salary and has a sizeable equity interest in a house valued at $150,000. In addition, plaintiff makes car payments and rent payments for his two sons, both of whom are employed. The filing fee for a civil action is $150. 28 U.S.C. § 1914(a). The court concludes that plaintiff is able to pay this fee without causing undue financial hardship.
Plaintiff states that he and his former wife jointly own a house in Plano, Texas valued at $150,000. ( See Plf. Mot. at 2, ¶ 4). In response to an order for additional financial information, plaintiff disclosed that there is a $5,000 balance due on this mortgage. ( See Plf. Resp. at 4, ¶ 6).
Although the Omnibus Appropriations Act of 2005 raised the filing fee to $250 effective February 7, 2005, the court will apply the fee in effect on the date plaintiff filed suit. See Martin v. Revere Smelting Refining Corp., 2005 WL 280326 at *1 n. 2 (N.D. Tex. Feb. 2, 2005).
RECOMMENDATION
Plaintiff's motion to proceed in forma pauperis should be denied. Plaintiff should be ordered to pay the statutory filing fee by March 15, 2005. If he fails to do so, the case should be dismissed without further notice.