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 second of many civil
actions Plaintiff recently filed in this Court, Plaintiff
sues the "Charleston City Police Department" and
(perhaps) the Savage Law Firm. 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 petition 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"), affirmed 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 filed on January 11, 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). He did not check
boxes (c) and (f). 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
$1, 000.00 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 debts or other financial obligations. (
Id. Â¶ 8). Although Plaintiff indicates that he pays
$130.00 monthly for his cell phone, $2, 000.00 for tuition,
$100.00 for property taxes and insurance, and $800.00 for
support of two dependents ( Id. Â¶Â¶ 6-7), the
Court's docket reflects that Plaintiff indicated in IFP
motions in other civil actions filed on or after January 11,
2016 that he has no expenses for "housing,
transportation, utilities, or loan payments, or other regular
indicates he has monthly income of $1, 200.00, assets of
$140, 000.00, and no debts, which suggests that he has the
ability to pay the filing fee in this case (and other cases).
SeeJustice, 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"). Based on the record presently before the Court,
it appears that Plaintiff can pay the filing fee in this
case. ( Id. at *5, "the court does not agree
that plaintiff is actually impoverished, " thus denying
IFP status and dismissing four civil lawsuits by the same
pro se plaintiff). This case should therefore be
dismissed. 28 U.S.C. Â§ 1915(e)(2)(A); seeThomas
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."); Justice,
2012 WL 1801949 at *6 n. ...