Opinion
4:21-MC-3-M
04-14-2022
DANIEL J. WILLIS, Plaintiff, v. J. ERIC BOYETTE, et al., Defendants.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
This matter is before the court on Plaintiff Daniel J. Willis's application to proceed in forma pauperis, [DE-3], and for review of the complaint in light of the court's April 5, 2002 prefiling injunction, which enjoined Willis from filing any additional cases in this district involving the Town of Trenton or Joffree T. Leggett without prior approval of the court. Upon consideration of Plaintiff's application, it is recommended the motion to proceed informal pauperis be denied, and that Plaintiff's request to file the proposed complaint be denied.
The profiling injunction was entered in the following cases: Willis v. Town of Trenton, N.C., No. 4:96-CV-6-H(4), Willis v. Mayor and Town Council of Town of Trenton, No. 4:99-CV-116-H(4), Willis v. Town of Trenton, N.C., No. 4:01-CV-13-H(4), Willis v. Town of Trenton, N.C., No. 4:01-CV-133-H(4), and Willis v. Leggett, No. 4:01-CV-159-H(4). A copy of the profiling injunction is attached to this memorandum and recommendation.
A magistrate judge, proceeding under 28 U.S.C. § 636(b), lacks authority to deny an application to proceed in forma pauperis and may only issue a recommendation to the district court. Hunter v. Roventini, 617 Fed.Appx. 225, 226 (4th Cir. 2015) (per curiam) (citing Woods v. Dahlberg, 894 F.2d 187, 187 (6th Cir. 1990) (per curiam) (“[A] denial of such a motion is the functional equivalent of an involuntary dismissal and is outside the scope of a magistrate's authority.”)).
A. In Forma Pauperis Application
A litigant may commence an action in federal court in forma pauperis (“IFP”) by filing an affidavit in good faith containing a statement of assets and demonstrating he cannot afford to pay the required fees of the lawsuit. See 28 U.S.C. 1915(a)(1). The IFP statute is intended to ensure that indigent persons have equal access to the judicial system by allowing them “to proceed without having to advance the fees and costs associated with litigation.” Flint v. Haynes, 651 F.2d 970, 972 (4th Cir. 1981). However, “proceeding [IFP] in a civil case is a privilege or favor granted by the government.” White v. Barnhart, Nos. 1:02-CV-556, l:02-CV-557, 2002 WL 1760980, at *1 (M.D. N.C. July 30, 2002) (citations omitted). In ruling on an IFP application, the court must exercise discretion in determining whether to grant or deny the application. Id. In Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948), the Supreme Court first set forth the standard for the determination of in forma pauperis'. “[w]e think an affidavit is sufficient which states that one cannot because of his poverty pay or give security for the costs ... and still be able to provide himself and dependents with the necessities of life.” Id. at 339 (internal quotation marks omitted). In exercising its discretion, the court is to be mindful that the ability to pay does not require that a plaintiff prove that he is “absolutely destitute.” Id.
Based on the information provided by Plaintiff regarding the current financial status of himself and his spouse, he has failed to demonstrate sufficient evidence indicating that payment of the required court costs would deprive him or his family of the “necessities of life.” Adkins, 355 U.S. at 339. Plaintiff and his spouse have no dependents, a combined monthly gross income of $3,793.00, $1,950.00 in checking accounts, and monthly expenses of $2,483.79. [DE-3]. Although Plaintiff states he cannot pay the cost of these proceedings due to his lack of employment, age, and health, the information provided by Plaintiff indicates that he and his spouse have more than $1,000.00 in monthly disposable income. Id. Plaintiff has failed to demonstrate he is one of the “truly impoverished litigants who, within the District Court's sound discretion, would remain without [a] legal remedy if such privilege were not afforded to them.” Brewster v. N. A. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). Accordingly, it is recommended that Plaintiff's application to proceed in forma pauperis be denied and, if the matter is allowed to proceed, that Plaintiff be required to tender to the clerk the filing and administrative fees of $402.00.
B. Prefiling Injunction
On April 5, 2002 the court entered a profiling injunction, which enjoined Willis from filing any additional cases in this district involving the Town of Trenton or Joffree T. Leggett without prior approval of the court. Plaintiff asks the court to allow him to file this civil rights action against the Town of Trenton; Darlene Spivey, Mayor of Trenton; the North Carolina Department of Transportation; and J. Eric Boyette, North Carolina Transportation Secretary. [DE-1-1]. A review of Plaintiff's complaint, the profiling injunction, and the cases in which it was entered lead the undersigned to conclude that the court should deny Plaintiff's motion the file the proposed complaint.
The Fourth Circuit Court of Appeals has also issued a prefiling injunction against Willis. See Willis v. Town of Trenton, No. 96-2066 (4th Cir. Mar. 17, 1997).
Plaintiff's proposed complaint stems from the alleged discriminatory denial, based on race and color, of infrastructure, such as sidewalks, curbs, gutters, and storm drains, in certain areas of the Town of Trenton, North Carolina. [DE-1-1]. Plaintiff alleges that whites enjoy such infrastructure but it is denied to African-Americans and people of color in violation of the Equal Protection and Due Process Clauses of the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution and Title III of the Civil Rights Act of 1964. Id. Plaintiff seeks damages of $600,000,000.00 and equitable relief. Id. Plaintiff attached to the proposed complaint a letter dated January 25, 1991 from the North Carolina Department of Transportation re: Town of Trenton Refund for Sidewalk Construction Project, [DE-1-2]; a letter dated July 26, 2004 from the NAACP in response to Plaintiff's letter regarding potential improvements around Trenton, [DE-1-3]; a document dated August 5, 1994 related to improvements to curb, gutter, and NC Highway 58 in Trenton, [DE-1-4]; a letter dated April 14, 2014 from the North Carolina Department of Transportation re: Plaintiff's request that funds be denied to the Town of Trenton, [DE-1-5]; Plaintiff's affidavit in support of the proposed complaint, [DE-1-6]; a document titled External Discrimination Complaint Form dated July 6, 2011 against the Town of Trenton and the Town Board of Trenton, [DE-1-7]; and Affidavit of Charles C. Jones, Jr., Councilman to the Town Board of Trenton, filed in Willis v. Town of Trenton, No. 4:99-CV-4-H(3), [DE-1-8].
The April 4, 2002 prefiling injunction against Plaintiff states, in relevant part, as follows. Since 1990, Willis had filed thirty eight actions against various Trenton defendants. All but the five actions addressed in the prefiling injunction order were dismissed for lack of merit or lack of prosecution. Willis acted as the “lead plaintiff' in many of the actions that included various coplaintiffs who had little or no participation in the cases, and the court “repeatedly admonished” Willis that he had no authority to act on behalf of other pro se parties and to cease his “unlawful practice of law.” On February 21, 2002, the court ordered Willis and the co-plaintiffs to appear for a pretrial conference in five cases. In response Willis filed motions to dismiss four of the five cases. No plaintiff appeared at the pretrial conference. The court noted that defendants spent large amounts of time and money defending the lawsuits, and the plaintiffs exhibited little interest in complying with discovery requests or rules of court relating to trial preparation. The court determined Willis's “recurring failure to actively prosecute his claims constitutes an abuse of the judicial system” that would no longer be tolerated and enjoined Willis from filing any additional cases in this district involving the Town of Trenton or Joffree T. Leggett without prior approval of the court. See attached Apr. 4, 2002 Prefiling Injunction.
Plaintiff's proposed complaint seeks to relitigate the issue of the Town of Trenton's alleged discriminatory denial of infrastructure in minority communities that were raised in prior cases, Willis v. Town of Trenton, N.C., No. 4:96-CV-6-H(4); Willis v. Town of Trenton, N.C., No. 4:01-CV-13-H(4), and the court has previously denied, pursuant to the prefiling injunction, Plaintiff's motions to reassert this type of claim, Willis v. Jones Cnty. Bd. of Educ., No. 4:18-MC-4-H, Order [DE-21] (E.D. N.C. Dec. 4, 2020); Willis v. Trenton, N.C., No. 4:08-MC-13, Order [DE-4] (E.D. N.C. July 13, 2009). Accordingly, Plaintiff's request to file the proposed complaint should be denied.
C. Conclusion
For the reasons stated herein, it is recommended that the motion to proceed in forma pauperis be denied, and that Plaintiff's request to file the proposed complaint be denied.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until April 28, 2022 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g, 28 U.S.C. § 63 6(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).