Opinion
No. 1:02CV556, 1:02CV557
July 30, 2002
ORDER
These actions are hereby consolidated solely for purposes of entering this order. A mother has filed lawsuits on behalf of her minor children, Brandon Diggs and Brian Diggs, respectively. The children are attempting to collect disability benefits pursuant to 42 U.S.C. § 1382c(a)(3) (A). The children did not file affidavits even though they are the real parties in interest. However, the mother did file an affidavit. She seeks to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (a) by claiming she and plaintiffs are "unable to pay" the filing fees for these two cases. Por the following reasons, the Court finds that partial, installment payment of the filing fees is appropriate.
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 prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security theretor. 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)
In ruling on a Section 1915(a) application, certain general principles apply. First, proceeding in forma pauperis in a civil case is a privilege or favor granted by the government. See Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 113 S.Ct. 716, 121 L.Ed.2c1 656 (1993); and see Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir.), cert. denied, 533 U.S. 953, 121 S.Ct. 2600, 150 L.Ed.2d 757 (2001) (upholding prisoner three-strike rule contained in 28 U.S.C. § 1915 (g)). Second, the statute reads that the Court "may authorize the commencement" of an action. The grant, denial, or other decision concerning an in forma pauperis application requires the Court to exercise discretion. Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). Third, the ability to pay does not require that plaintiffs contribute their "last dollar" or "make themselves and their dependents wholly destitute." Adkins v. E.I. DuPont de Nemours Co., 335 U.S. 331, 339, 69 S.Ct. 85, 93 L.Ed.2d 43 (1948). No one profits if the payment of court fees thereby makes the plaintiff an "object of public support." Id.
The imprecision of the term "unable to pay" makes it a "nettlesome concept" lending "itself to a fluid case-by-case approach." Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). As noted by the court in Temple,
The trial court must be careful to avoid construing the statute so narrowly that a litigant is presented with a Hobson's choice between eschewing a potentially meritorious claim or foregoing life's plain necessities. Potnick v. Eastern State Hospital, 701 F.2d 243, 244 (2d Cir. 1983) (per curiam); Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). But, the same even-handed care must be employed to assure that federal funds are not squandered to underwrite, at public expense, either frivolous claims or the remonstrances of a suitor who is financially able, in whole or in material part, to pull his own oar. Brewster v. North American Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). In practice, however, the idiosyncrasies of individual cases and the difficulties so often inherent in the hands-on application of high-minded principle tend to blur the picture.
Id. "[T]here is no bright line demarcation" for determining whether payment of court fees will leave a person destitute, itself a fluid concept. Id. Making matters even more difficult, the basis for making the decision, the financial affidavits submitted to the court, are often incomplete, vague, or ambiguous, especially those from pro se plaintiffs.
Furthermore, ability to pay is a function both of time and liquidity. A person with a steady income stream may not be able to make full payment at a particular time, yet has the ability to pay over a period of time. Some people manage their finances so as to live within their income, while others indulge themselves and live beyond their means. Other people have assets and can be quite wealthy, yet not be able to pay court tees without liquidating the assets. In order to treat all persons even-handedly, the Court must take into account the many, diverse economic situations that reflect ability to pay. This can be accomplished by requiring partial and/or installment payment of the court fees when appropriate. Auffant v. Paine Webber Jackson Curtis, 538 F. Supp. 1201 (D.P.R. 1982); In re Fontaine, 10 B.R. 175 (Bankr. D.R.I. 1981) (ordering installment payments).
The ordering of a partial payment or an installment payment for court fees fits within the statutory language. Section 1915(a) does not say that upon granting pauper status, court fees need not be paid or that they are remitted or otherwise waived. Instead, it merely authorizes commencement "without prepayment" it the applicant "is unable to pay such fees." This conveys the sense that the Court may authorize the filing of an action without prepayment, but may look to cash flow and assets in order to secure post-payment.
Prior to enactment of the 1996 Amendments to Section 1915 by the Prison Litigation Reform Act ("PLRA"), Public Law 104-134, the courts had, in large part, determined that they had the discretion to require partial payment of the filing fees by prisoners. Bryan v. Johnson, 821 F.2d 455 (7th Cir. 1987) (collecting cases). Partial payment was said to help ensure that prisoners had an economic incentive to police their own actions, just as the non-imprisoned public must do. This rationale applies to all members of the public, in all their diverse economic situations. Requiring all people to shoulder a share of the load encourages responsible citizenship essential for any democracy.
With the enactment of the PLRA, congress now requires partial payment of the filing fees by prisoners and has established a uniform collection methodology for both prepayment and post-payment of the fees. See 28 U.S.C. § 1915 (b). There has been some thought that, if not constitutional law, then at least elementary fairness requires that all parties applying for pauper's status be subject to possible partial payment of the filing fees, and not just prisoners. See Bryan, 821 F.2d at 459 (Cudahy, J., concurring); and Michael Zachary, Dismissal of Federal Actions and Appeals Under 28 U.S.C. § 1915 (E)(2) and 1915A(B), 42 U.S.C. § 1997E(C) and the Inherent Authority of the Federal Courts: (A) Procedures for Screening and Dismissing Cases; (B) Special Problems Posed by the "Delusional" or "Wholly Incredible" Complaint, 43 N.Y.L. Sch. L. Rev. 975, 995-996 (1999-2000)
Having determined that partial and/or installment payment of the filing fees is permissible and desirable, the Court next looks to who is responsible for payment when a minor is the plaintiff. Here, a parent has filed an action in order to obtain disability benefits for her children. A parent has the legal responsibility for the care of his or her child. Therefore, when determining the ability of a minor to pay the filing fees, the Court may look to the financial resources of the minor, the parent, or if appropriate, a next friend or guardian ad litem. Williams v. Spencer, 455 F. Supp. 205, 208 (D. Md. 1978); Fridman v. City of New York, 195 F. Supp.2d 534, 537 (S.D.N.Y. 2002), Zhu v. Countrywide Realty Co., 148 F. Supp.2d 1154, 1156 (D. Kan. 2001) (collecting cases). A court can require affidavits from both the minor and close family members. Zhu, supra.
Turning to the facts of the instant cases, the Court finds that the plaintiffs' mother makes $1,823.00 a month. She states that her net take home pay is $1,333.00 a month, but she does not explain the deduction. She owns two automobiles, but claims one does not run. She makes a house payment, but failed to list the house as an asset. Perhaps she rents. Her monthly payments for housing, utilities and other recurring monthly obligations are $538.00. However, she did not specifically include food, clothing, etc. She does not list any savings, checking or other accounts, or cash on hand, so presumably cannot make immediate payment of the filing fees. However, even assuming her cash report to be accurate, the mother clearly has an ability to pay the filing fees over time. Because there are two lawsuits, she would have to make an immediate payment of $300.00. Notwithstanding the uncertainties of her financial affidavit, there appears to be little question that the mother can make a relatively immediate partial payment of $50.00 in each case, and $50.00 for each case each month thereafter until the complete filing fees are paid.
IT IS THEREFORE ORDERED that the plaintiff in the above — entitled proceedings is hereby permitted to commence said proceedings in this court pursuant to 28 U.S.C. § 1915 (a) as a pauper upon partial payment, within fifteen days from the date of this order, of the filing fees in the amount of $50.00 for each case, and that plaintiff pay $50.00 each month thereafter, for each case, until the full filing fees are paid.
IT IS FURTHER ORDERED that, within fifteen days after the first $50.00 partial payment of the filing fees, plaintiff shall prepare and deliver to the Clerk the correct summons for service on each defendant, including the correct address, and the name and title of the individual to be served on behalf of a corporation, association, infant, incompetent or government agency.
IT IS FURTHER ORDERED that failure by plaintiff to make timely payments of the fees in each case, or failure to timely prepare and deliver a summons to the Court, shall be grounds for dismissing these actions without further notice. No summons shall be delivered to the Marshal without receipt of the first partial payment.
IT Is FURTHER ORDERED that the United States Marshal shall serve the summons and complaint.