United States District Court, D. South Carolina
Flagstar Bank, FSB, Plaintiff, represented by Andrew Augustyn
Powell, Rogers Townsend and Thomas, Angelia Jacquline Grant,
Scott Law Firm, Brian Montgomery Barnwell, Nelson Mullins
Riley and Scarborough, Jeremy Cook Hodges, Nelson Mullins
Riley and Scarborough, Reginald P. Corley, Rogers Townsend
and Thomas, Ronald Charles Scott, Scott Law Firm, Vance Lyn
Brabham, III, Scott and Corley & William Stapleton Koehler,
Weston Adams Law Firm.
Elaine Pinnex, Defendant, Pro Se.
REPORT AND RECOMMENDATION
V. HODGES, Magistrate Judge.
Elaine Pinnex ("Pinnex"), proceeding pro se, filed
a notice of removal that purports to remove a mortgage
foreclosure action filed in the Court of Common Pleas in
Calhoun County, South Carolina, Case No. 2015-CP-09-00126.
[ECF Nos. 1 at 1; 1-1]. All pretrial proceedings in this
matter were referred to the undersigned pursuant to 28 U.S.C.
Â§ 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.).
For the reasons that follow, the undersigned recommends that
the district judge deny Pinnex's motion to proceed in
forma pauperis [ECF No. 3]. However, even if Pinnex were to
pay the filing fee, the undersigned recommends this matter be
remanded for lack of subject matter jurisdiction.
Factual and Procedural Background
purports to remove a mortgage foreclosure action associated
with property located at 204 Baronet Lane, Elloree, SC,
29047. [ECF No. 1-1 at 32-38]. Pinnex alleges she is removing
the action "for Lack of Subject Matter Jurisdiction
pursuant to Federal Rule of Civil Procedure 12b(1)" and
argues the "[d]efense of lack of jurisdiction over the
subject matter may be raised at any time, even on
appeal." [ECF No. 1 at 1].
Motion to proceed in forma pauperis
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). 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 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.
Dep't 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 a
report and recommendation to preserve Plaintiff's
opportunity to obtain de novo review by the district
judge on objections.
litigant is not required to show he or she 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, 339-40 (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 or her "impecunity"?
(2) Is his or her access to the courts blocked by the
imposition of an undue hardship?
(3) Is the litigant forced to contribute his or her last
dollar, or render himself or herself destitute, to prosecute
his or her claim?
Id. at 943; see also Murray v. Gossett, C/A
No. 3:13-2552-CMC-SVH, 2013 WL 5670907, at *2 (D.S.C. Oct.
17, 2013) (adopting and incorporating Report ...