United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
GORDON BAKER, Magistrate Judge.
is the pro se Plaintiff's "Motion for Leave
to Proceed in forma pauperis"
("IFP"). (DE# 3). In the fourteenth of many civil
actions recently filed by Plaintiff in this Court, Plaintiff
sues the Ritz Carlton Corporation. Pretrial proceedings in
this action have been referred to the assigned United States
Magistrate Judge. Pursuant to Local Civil Rule 73.02(B)(2)
(D.S.C.), the Magistrate Judge is authorized to review the
complaint and to submit findings and recommendations to the
District Judge. Upon review, the Magistrate Judge
recommends that the Plaintiff's motion to proceed IFP be
denied and that the case be summarily dismissed for the
Liberal Construction for Pro se filings
Court is required to liberally construe pro se
documents, Estelle v. Gamble, 429 U.S. 97 (1976),
holding them to a less stringent standard than those drafted
by attorneys, Hughes v. Rowe, 449 U.S. 5 (1980) (per
curiam).). The liberal construction afforded pro se
pleadings means that if the court can reasonably read the
pleadings to state a valid claim, it should do so, but a
district court may not rewrite a complaint to "conjure
up questions never squarely presented" to the court.
Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986).
The requirement of liberal construction does not mean that
the court can ignore a clear failure in the pleading to
allege facts which set forth a claim currently cognizable in
a federal district court. Weller v. Dep't. of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990).
Applications to Proceed IFP
plaintiff may pursue a civil action in federal court without
prepayment of the filing fee if he submits an affidavit
containing a statement of his assets and demonstrates that he
cannot afford to pay the required filing fee. 28 U.S.C. Â§
1915(a)(1). The purpose of the IFP statute is to assure that
indigent persons have equal access to the judicial system by
allowing them to proceed without having to pay the filing
fee. Flint v. Haynes, 651 F.2d 970, 973 (4th
Cir.1981), cert. denied, 454 U.S. 1151 (1982). A
plaintiff does not have to prove that he is "absolutely
destitute to enjoy the benefit of the statute."
Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S.
331, 339 (1948).
affidavit to proceed IFP is sufficient if it states facts
indicating that the plaintiff cannot afford to pay the filing
fee. Adkins, 335 U.S. at 339. If a court determines
at any time that the allegation of poverty in an IFP
application is not true, then the court "shall dismiss
the case." 28 U.S.C. Â§ 1915(e)(2)(A); and see,
e.g., Justice v. Granville Cty. Bd. of Educ.,
2012 WL 1801949 (E.D. N.C. May 17, 2012) ("dismissal is
mandatory if the court concludes that an applicant's
allegation of poverty is untrue"), aff'd
by, 479 F.Appx. 451 (4th Cir. Oct. 1, 2012), cert.
denied, 133 S.Ct. 1657 (2013); Berry v. Locke,
2009 WL 1587315, *5 (E.D.Va. June 5, 2009) ("Even if
Berry's misstatements were made in good faith, her case
is subject to dismissal because her allegation of poverty was
untrue"), appeal dismissed, 357 F.Appx. 513
(4th Cir. 2009). Prior to statutory amendment in 1996, courts
had discretion to dismiss a case if it determined that an
allegation of poverty was untrue. See Denton v.
Hernandez, 504 U.S. 25, 27 (1992). The 1996 amendment
changed the words "may dismiss" to "shall
dismiss." Mandatory dismissal is now the majority view,
and district courts in the Fourth Circuit have adhered to the
majority view. See, e.g., Justice, 2012 WL
1801949, *6 n.5; Staten v. Tekelec, 2011 WL 2358221,
*1 (E.D. N.C. June 9, 2011); Berry, 2009 WL 1587315,
IFP motion dated January 12, 2016, Plaintiff indicates that
he is employed by "Fox Consulting Firm, LLC" and
that his "take-home pay or wages" are $1, 200.00
monthly. (DE# 3, Â¶ 2). On the printed form, he checks boxes
indicating that in the past 12 months, he has received income
from (a) business, profession, or other self-employment; (b)
rent payments, interest, or dividends; (d) disability or
worker's compensation payments; and (e) gifts or
inheritances. ( Id. Â¶ 3). Plaintiff explains that
the amount he received for (a) was $50.00; (b) $1, 200.00;
(d) $1, 200.00; and (e) $500.00. ( Id. ). He
indicates that he has $800.00 in his bank account. (
Id. Â¶ 4). Plaintiff also indicates he has assets
valued at $140, 000.00. ( Id. Â¶ 5).
indicates he has no expenses for "housing,
transportation, utilities, or loan payments, or other regular
monthly expenses" and no debts or other financial
obligations. ( Id. Â¶Â¶ 6, 8). Plaintiff indicates he
has monthly income of $1, 200.00, assets of $140, 000.00, and
no debts or other monthly expenses, which suggests that he
has the ability to pay the filing fee. See, e.g.,
Justice, 2012 WL 1801949, *3 (denying IFP status
where plaintiff indicated he owned real and personal property
with a total value of $113, 500.00 because "the benefit
of filing IFP was not intended to allow individuals with
significant real and personal property interests to avoid
paying a filing fee of $350.00 in each case"). In his
Complaint, Plaintiff also indicates that in 2013 he travelled
to Japan, stayed in a $900.00 per night executive suite, had
stayed in other five star hotels, rented a Mercedes
automobile, wore his Ralph Lauren Black Label suits, and
dined on Kobe beef, sushi, and plum wine. (DE# 1 at 4-7).
Taken as true, these are not the spending habits of a person
unable to afford a filing fee.
on the record presently before the Court, it appears that
Plaintiff can pay the filing fee. This case should therefore
be dismissed pursuant to 28 U.S.C. Â§ 1915(e)(2)(A). See
also Justice, 2012 WL 1801949, at *5 (denying
IFP status because plaintiff could pay the filing fee and
dismissing four civil lawsuits by the same pro se
plaintiff); Thomas v. GMAC, 288 F.3d 305, 306 (7th
Cir.2002) ("Because the allegation of poverty was false,
the suit had to be dismissed; the judge had no
choice."); Cabbil v. United States, Case No.
1:14-cv-04122-JMC-PJG, 2015 WL 6905072, *1 (summarily
dismissing without prejudice; plaintiff not entitled to
proceed IFP); Willingham v. Cline, 2013 WL 4774789
(W.D. N.C. Sept. 5, 2013) (same).
Complaint Fails to Set Forth a Basis for Subject Matter
Jurisdiction, Fails to State a Claim, and ...