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Marston v. Sunset Contracting, Inc.

United States District Court, S.D. Alabama, Southern Division

January 18, 2017

SCOTT MARSTON, Plaintiff,
v.
SUNSET CONTRACTING, INC., Defendant.

          ORDER

          KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE

         This action is before the Court on the motion for leave to proceed without prepayment of fees, or in forma pauperis (“IFP”), under 28 U.S.C. § 1915 (Doc. 2) filed by Plaintiff SCOTT MARSTON (“the Plaintiff”). The motion has been referred to the undersigned Magistrate Judge for appropriate action in accordance with 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72, and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b); (Case docket, 1/10/2017 electronic reference).

         Generally, “[t]he clerk of each district court shall require the parties instituting any civil action, suit or proceeding in such court, whether by original process, removal or otherwise, to pay a filing fee…” 28 U.S.C. § 1914(a). Authority for granting a party permission to proceed without prepayment of this filing fee is found at 28 U.S.C. § 1915, which provides, in relevant part, as follows:

[Generally], 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 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). “Despite the statute's use of the phrase ‘prisoner possesses, ' the affidavit requirement applies to all persons requesting leave to proceed IFP.” Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 n.1 (11th Cir. 2004) (per curiam).

         “The in forma pauperis statute, 28 U.S.C. § 1915, ensures that indigent persons will have equal access to the judicial system.” Attwood v. Singletary, 105 F.3d 610, 612-613 (11th Cir. 1997) (citing Coppedge v. United States, 369 U.S. 438, 446 (1962)). However, “[t]here is no question that proceeding in forma pauperis is a privilege, not a right, ” Camp v. Oliver, 798 F.2d 434, 437 (11th Cir. 1986), [1] and “should not be a broad highway into the federal courts.” Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984) (per curiam). Nevertheless, “while a trial court has broad discretion in denying an application to proceed in forma pauperis under 28 U.S.C.A. § 1915, it must not act arbitrarily and it may not deny the application on erroneous grounds.” Pace v. Evans, 709 F.2d 1428, 1429 (11th Cir. 1983) (per curiam) (citing Flowers v. Turbine Support Div., 507 F.2d 1242, 1244 (5th Cir. 1975)); see also Martinez, 364 F.3d at 1306-07 (“[A] trial court has wide discretion in denying an application to proceed IFP under 28 U.S.C. § 1915…However, in denying such applications a court must not act arbitrarily. Nor may it deny the application on erroneous grounds.” (quotation omitted)).

When considering a motion filed pursuant to § 1915(a), “[t]he only determination to be made by the court ... is whether the statements in the affidavit satisfy the requirement of poverty.” Watson v. Ault, 525 F.2d 886, 891 ([5]th Cir. 1976). An affidavit addressing the statutory language should be accepted by the court, absent a serious misrepresentation, and need not show that the litigant is “absolutely destitute” to qualify for indigent status under § 1915. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 338-40, 69 S.Ct. 85, 88-89, 93 L.Ed. 43 (1948). Such an affidavit will be held sufficient if it represents that the litigant, because of his poverty, is unable to pay for the court fees and costs, and to support and provide necessities for himself and his dependents. Id. at 339, 69 S.Ct. at 89. In other words, the statute is not to be construed such that potential litigants are forced to become public charges or abandon their claims because of the filing fee requirements. Id. at 339-40, 69 S.Ct. at 89…The district court must provide a sufficient explanation for its determination on IFP status to allow for meaningful appellate review. O'Neal v. United States, 411 F.2d 131, 138 (5th Cir. 1969); Phipps v. King, 866 F.2d 824, 825 (6th Cir. 1988); Besecker v. State of Ill., 14 F.3d 309, 310 (7th Cir. 1994) (per curiam).

Martinez, 364 F.3d at 1307 (footnotes omitted).

         “A court may not deny an IFP motion without first comparing the applicant's assets and liabilities in order to determine whether he has satisfied the poverty requirement.” Thomas v. Chattahoochee Judicial Circuit, 574 F.App'x 916, 917 (11th Cir. 2014) (per curiam) (unpublished)[2] (citing Martinez, 364 F.3d at 1307-08). “The question under 28 U.S.C. § 1915 is whether the litigant is ‘unable to pay' the costs, and the answer has consistently depended in part on [the] litigant's actual ability to get funds from a spouse, a parent, an adult sibling, or other next friend.” Williams v. Spencer, 455 F.Supp. 205, 209 (D. Md. 1978); see Fridman v. City of New York, 195 F.Supp.2d 534, 537 (S.D.N.Y. 2002) (“In assessing an application to proceed in forma pauperis, a court may consider the resources that the applicant has or ‘can get' from those who ordinarily provide the applicant with the ‘necessities of life, ' such as ‘from a spouse, parent, adult sibling or other next friend.' . . . If it appears that an applicant's ‘access to [ ] court has not been blocked by his financial condition; rather [that] he is “merely in the position of having to weigh the financial constraints imposed if he pursues [his position] against the merits of his case, ”' then a court properly exercises its discretion to deny the application.”); Sellers v. United States, 881 F.2d 1061, 1063 (11th Cir. 1989) (per curiam) (funds “derived from family sources” are relevant to IFP determination); Wilson v. Sargent, 313 F.3d 1315, 1319-20 (11th Cir. 2002) (per curiam) (same).[3] “Federal Courts have frequently recognized that, for purposes of determining IFP eligibility, it is appropriate to consider any support that an IFP applicant might receive from a spouse, or from any other individual.” Ginters v. Frazier, Civ. No. 07-4681 (JMR/RLE), 2008 WL 314701, at *2 n.1 (D. Minn. Feb. 4, 2008) (emphasis added); accord Fridman, 195 F.Supp.2d at 537; Williams, 455 F.Supp. at 208-09; Akkaraju v. Ashcroft, No. 03 C 6447, 2003 WL 22232969, at *1 (N.D. Ill. Sept. 26, 2003) (“In evaluating the funds available to in forma pauperis movants, courts may consider the income or resources of interested persons, such as spouses and parents.” (citation omitted)).

         Per the representations in the Plaintiff's IFP motion (Doc. 2), which is in substantial compliance with 28 U.S.C. § 1746 and thus constitutes an unsworn declaration under penalty of perjury, he is unmarried and has no dependents. He has been “unemployed-self employed” since December 2016, at which time he was making approximately $1, 600 a month. He reports no welfare aid. His only reported major asset is a Chevy Suburban valued at $1, 000, which is fully paid for. He reports $700.00 cash in banks, savings, etc., and he has received approximately $35, 000 in the last twelve months from “business, profession or other forms of self-employment.”[4] He reports monthly expenses of $500 in rent and $200 towards credit card debt ($1, 000 total).

         Upon consideration of the foregoing representations, the undersigned is not convinced that requiring payment of the $400.00 filing fee for this civil action would deprive the Plaintiff of the basic necessities of life. See Martinez, 364 F.3d at 1307.[5] Accordingly, no later than Wednesday, February 8, 2017, the Plaintiff must either 1) pay the full $400 filing fee, or 2) file an amended IFP motion providing any additional information the Plaintiff feels is necessary to demonstrate entitlement to proceed without prepayment of the filing fee. The failure to respond to this order, or the failure to file an amended IFP motion that sufficiently satisfies the requirement of poverty, will result in entry by the undersigned of a recommendation to the Court that Marston be denied leave to proceed IFP in this action, that he be ordered to pay the filing fee by a reasonable deadline, and that this action be dismissed without prejudice for failure to prosecute and obey the Court's orders if Marston fails to do so. See Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005) (holding that a district court may dismiss an action for failure to prosecute and obey a court order under both Federal Rule of Civil Procedure 41(b) and the court's inherent power to manage its docket).

         The Clerk of Court is DIRECTED to send the Plaintiff a copy of this Court's form IFP motion along with this Order.[6]

         ORDERED.

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