United States District Court, D. South Carolina, Orangeburg Division
Timothy M. Cain United States District Judge
Curtis Jerome Lytle, proceeding pro se, filed this action
pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971). (ECF No. 1,
Compl.). In accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02, D.S.C., this matter was referred to a
magistrate judge for pretrial handling. Before the court is
the magistrate judge's Report and Recommendation
(“Report”), recommending that Plaintiff's
motion to proceed in forma pauperis (ECF No. 2) be denied.
(ECF No. 8). Plaintiff was advised of his right to file
objections to the Report. (ECF No. 8 at 4). Plaintiff has not
filed any objections and, the time to do so has now run.
Report has no presumptive weight and the responsibility to
make a final determination in this matter remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court need not conduct a de novo review when a
party makes only “general and conclusory objections
that do not direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In that case, the court reviews the
Report only for clear error. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
courts “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, ” if the litigant submits an affidavit that
includes a statement of all his assets and shows that he is
“unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a)(1).
“Determination of what constitutes ‘unable to
pay' or unable to ‘give security therefor, '
and therefore, whether to allow a plaintiff to proceed is
left to the discretion of the presiding judge, based on the
information submitted by the plaintiff.” Farnsworth
v. United States, 106 Fed.Cl. 513, 516 (2012).
“Section 1915(a) does not require a litigant to
demonstrate absolute destitution; no party must be made to
choose between abandoning a potentially meritorious claim or
foregoing the necessities of life.”between abandoning a
potentially meritorious claim or foregoing the necessities of
life.” Potnick v. E. State Hosp., 701 F.2d
243, 244 (2d Cir. 1983) (citing Adkins v. E.I. DuPont de
Nemours & Co., 335 U.S. 331, 339 (1948)). “To
be ‘unable to pay such fees' means that paying such
fees would constitute a serious hardship on the plaintiff,
not that such payment would render plaintiff
destitute.” Prophet v. United States, 106
Fed.Cl. 456, 460-61 (2012) (quotation omitted).
magistrate judge noted that in his motion Plaintiff
acknowledged receiving approximately $3, 000 from family and
friends over the past 12 months and his monthly expenses were
$100-500. (Report at 2). The magistrate judge then referred
to the Financial Certificate and stated that Plaintiff had
average monthly deposits of $2220.00 and an account balance
of $16, 212.45. (Report at 2). Based on these figures, the
magistrate judge recommended that Plaintiff's motion be
denied. (Report at 3).
objections, Plaintiff states that the $2200 deposits were for
a six-month period and not monthly deposits and were from
family and friends and such deposits were not guaranteed or
expected to continue. (Objections at 1). He argues that the
Financial Certificate attached to his motion indicates he has
received $2220.84 during the past six months and has
withdrawn $1, 834.75 during the past six months. He contends
that he earns $17.64 per month from his prison job and thus
has a negative cash flow of $288.15 per month. Id.
He also states that he is financially responsible for his
mother and she was forced to move recently. (Objections at
attached a Financial Certificate to his motion dated April
28, 2016, which shows that Plaintiff has received $2, 220
during the past six months, and has a current balance of $16,
212.45 in his inmate account. (ECF No. 2-1). It appears the
Magistrate Judge erred in finding that the Financial
Certificate shows average monthly deposits of $2200.
As Plaintiff states in his objections, this figure represents
deposits from the past six months. However, as the magistrate
judge correctly noted, the Financial Certificate shows
Plaintiff has an account balance of $16, 212.45. (ECF No.
2-1). Plaintiff did not address this asset in his objections.
With an inmate account balance of $16, 212.45, the court
finds Plaintiff has more than sufficient funds to pay the
filing fee, and that paying the filing fee will not cause
undue hardship rendering Plaintiff destitute.
after a thorough review of the record in this action, the
court adopts the Magistrate Judge's Report (ECF No. 8)
and incorporates it herein. It is therefore
ORDERED that Plaintiff's motion to
proceed in forma pauperis is DENIED.
shall have thirty-one (31) days to pay the $400 fee (filing
fee plus administrative fee), or this case will be dismissed.
If Plaintiff pays the fee, this action should be recommitted
to the Magistrate Judge for further initial review.
IS SO ORDERED.
OF RIGHT TO APPEAL
parties are hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the Federal Rules of Appellate