United States District Court, S.D. Alabama, Southern Division
KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE
action is before the Court on the motion for leave to proceed
without prepayment of fees and costs, or in forma
pauperis (“IFP”), under 28 U.S.C. §
1915 (Doc. 4) filed by Plaintiff ERICA GLASKER (“the
Plaintiff”). Under S.D. Ala. GenLR 72(b), this
nondispositive pretrial motion has been referred to the
undersigned Magistrate Judge for determination in accordance
with 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil
Procedure 72(a), and S.D. Ala. GenLR 72(a)(2)(S).
for granting a plaintiff permission to proceed without
prepayment of fees and costs is found at 28 U.S.C. §
1915, which provides 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 [person] possesses [and] 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); see Troville v. Venz,
303 F.3d 1256, 1260 (11th Cir. 2002) (affirming the
application of § 1915's provisions to a
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),
“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 v. Kristi
Kleaners, Inc., 364 F.3d 1305, 1306-07 (11th Cir. 2004)
(per curiam) (“[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 (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).
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) (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). “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.”
representations in the Plaintiff's sworn IFP motion (Doc.
4), she is single and supports two (2) dependent children.
Plaintiff is currently employed part time with FedEx earning
$120 a week. She owns real property valued at $107, 000, for
which she has owes $100, 000 on a mortgage. Plaintiff did not
complete the section of the form identifying her other major
assets (e.g., automobiles, motor homes, etc.). She reports $0
total cash in banks, savings, etc. Plaintiff did not provide
any information when asked to list monies received by her, or
held by others for her, in the last 12 months. Her only
reported debt is her mortgage note on which she pays $766 a
month. Plaintiff receives $300 a month in food stamps.
consideration, the undersigned finds that the following
additional information is needed concerning the complete
financial picture of the Plaintiff and her family:
1. The Plaintiff must affirmatively report “other
assets/property, such as automobiles, boats, motor homes,
court judgments, etc.” (Section VI.2.a).
2. The Plaintiff must affirmatively report an amount of
“monies received by you during the last twelve (12)
months, or held for you by banks, savings and loan
associations, prisoner accounts, other financial
institutions, or other sources…” that were
received from “any other sources.” (Section
such, no later than Friday, April 21, 2017, the
Plaintiff is ORDERED to either 1) file an amended
IFP motion or sworn supplement (or one in substantial
compliance with 28 U.S.C. § 1746) to the present IFP
motion providing the information requested above, or
2) pay the requisite $400 filing fee. The failure to do
either will result in entry by the undersigned of a report
and recommendation that this action be dismissed for failure
to prosecute and obey the Court's orders. See,
e.g., Bland v. Colvin, Civil Action No.
14-00374-KD-N, 2014 WL 6451246 (S.D. Ala. Nov. 17, 2014)
(dismissing Social Security appeal, under both Fed.R.Civ.P.