United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMNEDATION
is a pro se (non-prisoner) litigant. Plaintiff has
filed a civil action pursuant to 42 U.S.C. § 1983
against the presiding judge in his state divorce case. (DE#
1, Complaint). He complains about Judge Helms'
rulings in the divorce case and alleges that Judge Helms has
“emboldened, bolstered and supported Toya S.
Allen's illegal, immoral and unjust behavior.”
(Id. at 5, ¶ 15). Plaintiff has filed a
“Motion for Leave to Proceed in forma
pauperis” (“IFP”). (DE# 2). 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:
Relevant Law: 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.
§ 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).
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.
IFP Not Warranted
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# 2). A review of the motion
indicates Plaintiff is currently employed, with a bi-weekly
paycheck of $1, 829.16. (Id. at 1). He indicates that
he has $500.00 in his bank account “remaining after all
of my monthly bills have been paid.” (DE#2 at ¶
4). He indicates he also has $1, 500.00 in a 401k account. He
indicates he jointly owns an automobile with his ex-wife, as
well as a marital residence (approximately 5, 000 sq. feet)
that he says is valued at approximately $1, 000,
He says he is responsible for child support for two children.
Viewing this information as a whole, it appears that
Plaintiff is not indigent and presently has sufficient income
and/or assets to pay the filing fee in this case.
With or without prejudice
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 indicate that he is able 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 will be appropriate.
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.
IS SO RECOMMENDED.
of Right to File Objections to Report and
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 recommendation.'” Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310
(4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
written objections must be filed within fourteen (14) days of
the date of service of this Report and Recommendation. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see
Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal