United States District Court, S.D. Alabama, Northern Division
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
action is before the Court on Plaintiff Curtis Smith's
Complaint (Doc. 1) and his motion to proceed without
prepayment of fees and costs (Doc. 2). The motion to proceed
in forma pauperis (“IFP”) has been
referred to the undersigned United States Magistrate Judge
for pretrial disposition pursuant to 28 U.S.C. §
636(b)(3) and Local Rule 72.2(c)(3).
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.”
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
Fed.Appx. 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.” (citation omitted)).
consideration, the undersigned finds that the information in
the Plaintiff's present motion (Doc. 2) is insufficient
to make an informed IFP determination. More specifically, the
undersigned finds that the following additional information
is needed concerning the Plaintiff's complete financial
1. Plaintiff indicates that he co-owns an item of real
property with Stephanie Braxton. (Doc. 2 at 2). Plaintiff
identifies the property as “city lot and house”
but failed to provide the property address. Plaintiff shall
provide the full address of this item of real property.
2. Plaintiff indicates that he pays $260 in rent on a monthly
basis, but also states, “I live with my fiancé
and she pays the bills.” (Doc. 2 at 3, ¶ 3a and
Doc. 2 at 4, ¶ 5). Plaintiff shall clarify which bills
he pays and which bills his fiancé pays and shall
provide an estimated monthly amount of support he is
receiving from his fiancé.
on or before Tuesday, March 27,
2018, Plaintiff must either 1) pay the full
$400 filing fee, or 2) file an amended IFP motion or sworn
supplement to the present IFP motion that provides the
information requested above, along with any additional
information the Plaintiff feels is necessary to demonstrate
entitlement to proceed without prepayment of the filing fee.
The failure to comply with this directive will result in
entry of a recommendation to the Court that the Plaintiff be
denied leave to proceed IFP in this action, and that this
action be dismissed without prejudice for failure to
prosecute and obey the Court's orders unless the
Plaintiff pays the filing fee within the time period for
objections to the recommendation. 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); Woods v.
Dahlberg, 894 F.2d 187, 187 (6th Cir. 1990) (per curiam)
(denial of IFP motion is “the functional equivalent of
an involuntary dismissal”).