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Peeples v. Xlibris Publishing

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

April 8, 2019

MARIO ANDJUAN PEEPLES, Plaintiff,
v.
XLIBRIS PUBLISHING, Defendant.

          REPORT AND RECOMMENDATION

          WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE.

         This action is before the Court on Plaintiff's amended pro se complaint (Doc. 5) and amended motion to proceed without prepayment of fees and costs (Doc. 6). This matter has been referred to the undersigned for pretrial disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72(a)(2)(S). Upon consideration of all relevant pleadings filed in this case, it is recommended that this Court DENY Plaintiff's amended motion to proceed without prepayment of fees (Doc. 6) and it is further recommended that this action be DISMISSED WITHOUT PREJUDICE, prior to service of process, both because Plaintiff has failed to establish that diversity jurisdiction exists and because he has failed to state a claim for copyright infringement, see 28 U.S.C. § 1915(e)(2)(B)(ii) (recognizing that a complaint may be dismissed for failure to state a claim upon which relief may be granted).

         I. PLAINTIFF'S AMENDED MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES (Doc. 6).

         By previous order entered on February 22, 2019, the undersigned denied Plaintiff's IFP motion filed on February 19, 2019 (Doc. 4; see also Doc. 2 (IFP motion)). That Order explained at some length the deficiencies in Plaintiff's first IFP motion (see Doc. 4, at 5- 7). In particular, in his initial motion, Plaintiff indicated that he provided for his basic living needs (food, clothing, shelter, etc.) with his SSI monies/benefits and “”loans” (Doc. 2, at 3), prompting the undersigned to parenthetically note that it appeared Plaintiff had received “loans” from family members because he listed no financial debts or obligations and the entirety of his SSI monies (of $771.00 monthly) would “'go' to the payment of rent and utilities (Doc. 4, at 6 n.5). Moreover, the undersigned informed Plaintiff that if he subsequently identified in a new IFP motion “that he receives loans from a family member or family members, . . . the Court would then be in the position of having to consider the ability of Plaintiff's parents, adult siblings, or other next friends to pay the filing fee and other related costs without being deprived of the basic necessities of life.” (Doc. 4, at 6 (citations omitted)).

         When Plaintiff filed his “new” motion to proceed without prepayment of fees on March 11, 2019 (Doc. 6), he indicated his address as 7403 Saybrook Blvd., Mobile, Alabama 36619 (id. at 1 & 4), that he pays monthly rent of either $600 or $800 (id. at 3), that he has no assets, no monies in any bank and no savings or investment income (id. at 2-3), that he receives a monthly SSI check totaling $771.00 (id. at 3), and that he has absolutely no financial debts or obligations (id.). Finally, Plaintiff “adds” that he does “not know anyone willing to help with expenses and legal matters at the time.” (Id.)

         The undersigned again recognizes that the authority for granting a plaintiff permission to proceed without prepayment of fees and costs is found at 28 U.S.C. § 1915:

(a)(1) Subject to subsection (b), 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, 82 S.Ct. 917, 921-922, 8 L.Ed.2d 21 (1962). The opportunity to proceed as an indigent in civil cases, created by statute, is not considered a right but a privilege, Rivera v. Allin, 144 F.3d 719, 724 (11th Cir.), cert. dismissed, 524 U.S. 978, 119 S.Ct. 27, 147 L.Ed.2d 787 (1998), and “should not be a broad highway into the federal courts[, ]” Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984). Thus, “a trial court has broad discretion in denying an application to proceed in forma pauperis under 28 U.S.C.A. § 1915, [but] 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), citing Flowers v. Turbine Support Division, 507 F.2d 1242, 1244 (5th Cir. 1975); see also Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 & 1306-1307 (11th Cir. 2004) (“[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.”).

         “In order to authorize a litigant to proceed in forma pauperis, the court must make two determinations: first, whether the litigant is unable to pay the costs of commencing this action; and second, whether the action is frivolous or malicious.” Boubonis v. Chater, 957 F.Supp. 1071, 1072 (E.D. Wis. 1997), citing 28 U.S.C. § 1915(a) & (e)(2)(B)(i). “While one need not be absolutely destitute to qualify for in forma pauperis status, such benefit is allowed only when a movant cannot give such costs and remain able to provide for herself and her dependents.” Mitchell v. Champs Sports, 42 F.Supp.2d 642, 648 (E.D. Tex. 1998) (citations omitted). “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.”). In Martinez, supra, the Eleventh Circuit determined that affidavit statements satisfying the requirement of poverty should be accepted by the trial court “absent a serious misrepresentation, and need not show that the litigant is ‘absolutely destitute' to qualify for indigent status under § 1915.” 364 F.3d at 1307 (citation omitted); see also id. (“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.”).

         Upon a review of the Plaintiff's “new” IFP motion filed on March 11, 2019 (Doc. 6), the undersigned RECOMMENDS that the Court exercise its broad discretion to DENY the motion. The undersigned would note that the question is not whether Plaintiff knows “anyone willing to help with expenses and legal matters” at this time (Doc. 6, at 3); instead, the question for this Court is whether Plaintiff lives with a family member(s) or other next friend who is able to pay the filing fee and other related costs without being deprived of the basic necessities of life. See Martinez, supra, 364 F.3d at 1307; compare Id. with, e.g., Williams, supra, 455 F.Supp. at 209 (under § 1915, the answer to whether a litigant is unable to pay depends “in part on [the] litigant's actual ability to get funds from a spouse, a parent, an adult sibling, or other next friend” (emphasis added)) and Fridman, supra, 195 F.Supp.2d at 537 (“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.'” (emphasis added)). And it is apparent to the undersigned that Plaintiff, instead of admitting that he lives with a family member or other next friend who can (or cannot) pay the filing fee and related costs for him, is trying to “hoodwink” this Court into granting him IFP status based upon the minimal monthly “SSI” income he receives. That Peeples lives with a family member or other next friend is clear based on an internet search of his residence-7403 Saybrook Blvd., Mobile, Alabama 36619-establishing that the value of the (6-bedroom, 3.5 bath) single-family house is $349, 377.00, with a rent “Zestimate” of $1, 750/month and an estimated refinance payment of $1, 366.00/month. See https://www.zillow.com/homedetails/7403-Saybrook-Blvd-Mobile (last visited, April 3, 2019, at 4:20 p.m.). Therefore, in absence of the assistance of family members or other next friends (and living with family members or other next friends), Plaintiff would certainly not be living in a 6-bedroom, 3.5 bath house worth just shy of $350, 000 and paying monthly rent between $600 and $800 a month (while receiving only $771.00 monthly and accruing no financial debts or obligations), as such rent would not “cover” the reasonable monthly rent or mortgage on this residence. Accordingly, the undersigned RECOMMENDS that the Court DENY Plaintiff's “new” IFP motion (Doc. 6) based upon the inconsistent and questionable information set forth in that document.[1]

         II. PLAINTIFF'S AMENDED COMPLAINT (Doc. 5).

         By previous order entered on February 22, 2019, the undersigned also identified various deficiencies in Plaintiff's original complaint that he needed to remedy in an amended complaint. (Doc. 4, at 1-2; compare Id. with 1 (complaint)).[2] In particular, the undersigned explained to Plaintiff that his complaint, filed on February 19, 2019, did not contain a statement of the grounds for the Court's jurisdiction, as required by Fed.R.Civ.P. 8(a)(1) (Doc. 4, at 1), explained the three different types of subject-matter jurisdiction that a federal district court may exercise (Doc. 4, at 2 n. 2), and informed Peeples that he was required to “'affirmatively allege facts demonstrating the existence of jurisdiction.'” (Id., quoting Cornelius v. U.S. Bank Nat'l Ass'n, 452 Fed.Appx. 863, 865 (11th Cir. Nov. 29, 2011), in turn quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). In addition, the February 22, 2019 Order further explained to Peeples that his original complaint did not contained a short and plain statement of the claim showing he was entitled to relief, as required by Fed.R.Civ.P. 8(a)(2), as the Court was unsure whether he was asserting a claim for breach of contract, a copyright infringement claim, or both. (Doc. 4, at 2.) As a result, Peeples was instructed to “identify all relevant facts in support of his claim or claims in separately-numbered paragraphs and also specifically (and separately) identify the claim or claims asserted against Xlibris and his right to exercise each identified claim (and his right to recovery as to each claim) based on the relevant facts.” (Id. (footnotes omitted)).

         Plaintiff's amended complaint filed March 11, 2019 (Doc. 5), the operative pleading in this case (see Doc. 4, at 2-3), contains the following jurisdictional statement: “This court has jurisdiction under the federal statutes that cover copyright laws and parties being located in separate states. The address for Xlibris, the defendant, is located at 1663 Liberty Dr., Bloomington, Indiana 47403 and the plaintiff's address is at 7403 Saybrook Blvd., Mobile, AL 36619. It also has subject matter jurisdiction by it involving copyright law.” (Doc. 5, at 1.) Plaintiff claims in his amended complaint that the Defendant breached three separate contracts-a distribution contract, a marketing contract, and several settlement contracts-and, as well, that the Defendant's actions in ...


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