United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. HODGES, Magistrate Judge.
sole issue in this Report and Recommendation is whether Frank
Palestro, ("Plaintiff"), should be required to pay
the filing fee, or whether Plaintiff's financial
condition justifies waiver of the payment. Plaintiff has
commenced this action pursuant to 42 U.S.C. Â§ 405(g)
requesting review of the Commissioner of Social
Security's decision denying her application for
disability benefits. All pretrial proceedings in this matter
were referred to the undersigned pursuant to Local Civ. Rule
73.02(B)(2)(a) (D.S.C.). For the reasons that follow, the
undersigned recommends denying Plaintiff's request for
filed an Application to Proceed in District Court without
Prepaying Fees or Costs (Form AO-240). [ECF No. 3]. In the
Form AO-240, Plaintiff states that he receives a NYPD pension
of $6419.91 per month and VA compensation of $1227.09 per
month. Id. at 1. Plaintiff indicates that that he
has a home and two cars with a combined worth of $320, 000,
and he pays a total of $3191 per month for his mortgage,
utilities, and car payment. Id. at 2.
or denials of applications to proceed in forma pauperis are
left to the discretion of federal district courts.
See Dillard v. Liberty Loan Corp., 626 F.2d
363, 364 (4th Cir. 1980). However, there is no clear
precedent in the Fourth Circuit concerning a magistrate
judge's authority to issue an order denying an
application to proceed in forma pauperis. The Sixth Circuit
has concluded that a magistrate judge cannot issue an order
to deny an application to proceed in forma pauperis.
Woods v. Dahlberg, 894 F.2d 187 (6th Cir. 1990).
Specifically, the Woods court ruled that a denial of
an application to proceed in forma pauperis by a magistrate
judge is the functional equivalent of an involuntary
dismissal, which cannot be granted by a magistrate judge
pursuant to 28 U.S.C. Â§ 636(b)(1)(A). Id. at 187.
The Tenth and Fifth Circuits have reached similar
conclusions. See Lister v. Dept. of the
Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005);
Donaldson v. Ducote, 373 F.3d 622, 623-25 (5th Cir.
2004). Therefore, the undersigned submits this Report and
Recommendation to preserve Plaintiff's opportunity to
obtain a de novo review by the district judge on
litigant is not required to show that he is completely
destitute in order to qualify as an indigent within the
meaning of 28 U.S.C. Â§ 1915(a). Adkins v. E.I. Du Pont de
Nemours & Co., 335 U.S. 331, 337-44 (1948). However, the
"privilege to proceed without posting security for costs
and fees is reserved to the many truly impoverished litigants
who... would remain without legal remedy if such privilege
were not afforded to them." Brewster v. North Am.
Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). In
Carter v. Telectron, Inc., 452 F.Supp. 939 (S.D.
Tex. 1976), the court enunciated three legal tests used to
determine whether a person should proceed in forma
pauperis under 28 U.S.C. Â§ 1915:
(1) Is the litigant barred from the federal courts by the
reason of his "impecunity"?
(2) Is his access to the courts blocked by the imposition of
an undue hardship?
(3) Is the litigant forced to contribute his last dollar, or
render himself destitute, to prosecute his claim?
Id. at 943; see also Abbot v. Commissioner of
Social Security, C/A No. 4:10-2253-JFA-TER, 2010 WL
4226151, at *1 (D.S.C. Sept. 17, 2010); Schoenfeld v.
Donaghue, C/A No. 4:07-617-RBH, 2007 WL 1302659, at *3
(D.S.C. May 2, 2007).
review of the information before the court, and mindful of
the tests set forth in Carter, it does not appear
that Plaintiff would be rendered destitute by paying the
filing fee of $400 (including a $50 administrative fee), nor
is there any indication that requiring payment of the filing
fee would impose an undue hardship or effectively block
Plaintiff's access to the courts. See
Carter, 452 F.Supp. at 942 (holding Plaintiff was
not indigent because he had the right to collect a judgment
of $5, 486.76); see also Ali v. Cuyler, 547
F.Supp. 129 (E.D. Pa. 1982) (finding $450.00 in savings
sufficient to allow the plaintiff to pay the filing fee of
$60.00 without foregoing basic human needs). Therefore, the
undersigned recommends Plaintiff's Application to Proceed
in District Court without Prepaying Fees or Costs [ECF No. 3]
Conclusion and Recommendation
foregoing reasons, it is recommended that the district judge
deny Plaintiff's Application to Proceed Without
Prepayment of Fees and Affidavit. If the district judge
accepts this recommendation, Plaintiff would have 14 days