Opinion
CA 01-0063-CB-C
March 20, 2001
REPORT AND RECOMMENDATION
Plaintiff, William Villar, has filed a civil action appealing the denial of the Commissioner of the Social Security Administration for Social Security and Disability Insurance benefits under Titles II and XVI of the Social Security Act. Jurisdiction has been alleged pursuant to 42 U.S.C. § 405 (g) and § 1383(c). Plaintiff did not pay a filing fee but has instead filed a motion to proceed without prepayment of fees and costs pursuant to 28 U.S.C. § 1915 (Doc. 2). That motion was denied by Order on February 1, 2001 (Doc. 3), and has not been appealed to Chief Judge Charles R. Butler, Jr. After a careful consideration of the entire file, it is determined that this action should be dismissed without prejudice due to plaintiff's failure to pay the appropriate filing fee.
The Court received a letter from plaintiff's counsel, Rose A. McPhillips, dated February 21, 2001, asking the Court to reconsider the February 1, 2001 denial. Because this letter seeking Court action violates Local Rule 5.1(d) and further, since the undersigned's earlier decision not to grant in forma pauperis status was not appealed and thus is the law of the case, the letter request is DENIED.
FINDINGS OF FACT
1. Mr. and Mrs. William Villar live at 252 Stocking Street, Mobile, Alabama, 36604. Their home has an estimated value of $43,000.00, and the total indebtedness on their home is $35,000.00, giving them approximately $8,000.00 in equity. They make monthly mortgage payments of $420.00.
2. Mr. and Mrs. Villar are both employed. Mr. Villar works for Port Oil, Springhill Avenue, Mobile, Alabama, and is paid $450.00 per week. He has been employed at Port Oil for two and one-half years. Mrs. Villar is a bus driver for McIntosh Bus Lines at a weekly salary of $180.00.
3. Mr. Villar owns a 1986 F-150 pickup truck valued at $500.00 and Mrs. Villar owns a 1991 van valued at $2,500.00 with an indebtedness of $2,400.00. The monthly note on the van is $300.00.
4. The other monthly expenses identified by the Villars are $145.00 for insurance, $125.00 for electricity, $60.00 for water, $50.00 for phone service, and $85.00 for gas.
CONCLUSIONS OF LAW
The request for in forma pauperis status has been made pursuant to 28 U.S.C. § 1915 (a)(1) which reads, in pertinent part, as follows:
Subject to subsection (b) any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayments of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress.28 U.S.C. § 1915 (a)(1).
28 U.S.C. § 1915 was intended to provide indigent litigants with meaningful access to courts. Adkins v. E.I. duPont de Nemours Co., 335 U.S. 331, 342-343, 69 S.Ct. 85, 93 L.Ed. 43 (1948); Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1988). Thus, suit is authorized without the prepayment of fees and costs for indigent plaintiffs. Denton v. Hernandez, 504 U.S. 25, 27, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). The requisite preliminary determinations for the district court are whether a particular applicant is indigent and if so, whether or not his or her action is frivolous or malicious.
The affidavit required by the statute must show an inability to prepay fees and costs without foregoing the basic necessities of life. Zuan v. Dobbin, 628 F.2d 990, 992 (7th Cir. 1980); McClain v. United States Department of Justice, 1997 WL 53112 (N.D. Ill.).
In the present application, Mr. and Mrs. Villar have a combined income of $630.00 per week. They have equity in their home of approximately $8,000.00 and each own a vehicle. Their itemized expenses per month total $1,185.00 against a gross monthly income of approximately $2,520.00. Under these circumstances, Mr. Villar has failed to prove that he and his wife would not be able to afford life's basic necessities if he were required to pay a filing fee of $150.00 as previously ordered.
Since plaintiff has refused to pay the filing fee, although given the opportunity to do so through the Court's Order of February 1, 2001 (Doc. 3), and given a second opportunity through contact with his attorney on or about February 21, 2001, it is recommended that his complaint be dismissed without prejudice due to his failure to prosecute by failing to pay a filing fee.
The attached sheet contains important information regarding objections to this report and recommendation.