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Glasker v. Small Wonders

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

April 7, 2017

ERICA GLASKER, Plaintiff,
v.
SMALL WONDERS, 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 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).

         Authority 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 non-prisoner's complaint).

         “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 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 ([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 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.

         Upon 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 VI.2.c).

         As 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. ...


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