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Allen v. Allen

United States District Court, D. South Carolina

March 13, 2018

Horace Dwayne Allen, Plaintiff,
v.
Toya Shantel Allen, Defendant.

          REPORT AND RECOMMNEDATION

          MARY GORDON BAKER JUDGE

         Plaintiff is a pro se (non-prisoner) litigant. Plaintiff has filed a civil action pursuant to 42 U.S.C. § 1983 against his wife, who has filed for divorce in state court. His claims against his estranged wife include “malicious prosecution, ” harassment, and negligence. Plaintiff has filed a “Motion for Leave to Proceed in forma pauperis” (“IFP”). (DE# 3). 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 United States Magistrate Judge is authorized to review the complaint and to submit findings and recommendations to the United States District Judge. Upon review, the Magistrate Judge recommends that the Plaintiff's motion to proceed IFP be denied, for the following reasons:

         I. Relevant Law: Applications to Proceed IFP

         A 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. § 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). While 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), “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, ” Justice v. Granville Cty. Bd. of Educ., 2012 WL 1801949, *3 (E.D. N.C. May 17, 2012) (denying IFP status), aff'd, 479 F.App'x. 451 (4th Cir. Oct. 1, 2012), cert. denied, 133 S.Ct. 1657 (2013).

         An affidavit to proceed IFP is generally sufficient if it states facts indicating that the plaintiff cannot afford to pay the filing fee. Adkins, 335 U.S. at 339. Additionally, if a court determines at any time that the allegation of poverty in an IFP application is untrue, then the court “shall dismiss the case.” 28 U.S.C. § 1915(e)(2)(A); and see, e.g., Justice, 2012 WL 1801949 (“dismissal is mandatory if the court concludes that an applicant's allegation of poverty is untrue”); 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 Fed.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, *5.

         II. Discussion

         A. IFP Not Warranted

         Plaintiff has submitted an Application to Proceed Without Prepaying Fees or Costs (Short Form AO 240), which is deemed to be a motion for leave to proceed in forma pauperis (“IFP”). (DE# 3). A review of the motion indicates Plaintiff is currently employed, with a bi-weekly paycheck of $1, 829.16. (Id. at ¶ 3). In his Complaint, Plaintiff indicates that he has an annual salary of $41, 298.00 as a public school teacher. (DE# 1 at 1). He indicates that he has $500.00 in his bank account “remaining after all of my monthly bills have been paid.” (DE#3 at ¶ 4). He indicates he also has $1, 500.00 in a 401k account. He indicates he jointly owns an automobile with his estranged wife, as well as a marital residence that he says is valued at approximately $1, 000, 000.00 (Id. at 2, 9, 12). He says he is responsible for child support for two children. In his Complaint, he alleges that he and his wife earned over $3, 000, 000.00 during 2007-2014. (DE# 1 at 7-8, 12, citing Exs. 9 and 70, IRS Form 1040s). Plaintiff indicates their divorce action is currently pending in state court. (Id.). Viewing this information as a whole, it appears that Plaintiff presently has sufficient income and/or assets to pay the filing fee in this case.

         B. With or without prejudice

         If Plaintiff does not pay the filing fee after adequate opportunity to do so, the next question is whether dismissal should be with or without prejudice. Such decision is a matter within the Court's discretion. See, e.g., Staten, 2011 WL 2358221 at *2 (observing that dismissal with prejudice is generally appropriate “only when the applicant intentionally misrepresented his … financial condition, acted with bad faith, and/or engaged in manipulative tactics or litigiousness”); Berry, 2009 WL 1587315, *5 (same, citing Thomas v. GMAC, 288 F.3d 305, 306-308 (7th Cir. 2002)); In re Sekendur, 144 Fed.Appx. at 555 (7th Cir. 2005) (“a court faced with a false affidavit of poverty may dismiss with prejudice in its discretion”). Here, the record does not conclusively establish that Plaintiff has intentionally misrepresented his financial condition. Rather, the facts in his affidavit simply do not indicate that he is unable to pay the filing fee. Hence, the Magistrate Judge recommends that Plaintiff be given thirty (30) days in which to pay the filing fee. If Plaintiff does not do so, then dismissal without prejudice would be appropriate.

         Accordingly, the Plaintiffs motion to proceed IFP (DE #3) should be denied; and Plaintiff should be given thirty (30) days to pay the filing fee in this case.

         IT IS SO RECOMMENDED.

         Notice of Right to File Objections to Report and Recommendation

         The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the ...


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