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Kampen v. State

United States District Court, D. South Carolina

April 24, 2018

Melanie van Kampen, Plaintiff,
v.
State of South Carolina, Defendant.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III United States Magistrate Judge.

         The sole issue in this Report and Recommendation is whether Plaintiff should be required to pay the filing fee, or whether her financial condition justifies waiver of the filing fee.

         Plaintiff has filed an Application to Proceed Without Prepaying Fees or Costs (AO 240), also known as an application to proceed in forma pauperis. In her application, Plaintiff states she receives $13, 800 per year from an annuity. She reports that she has $6, 500 in cash or in a checking or savings account. She lists her expenses as a total of $650. She lists no dependents and no debts. She lists asset of a condominium valued at $90, 000.

         This information raises questions over the application to proceed without prepayment of fees. A litigant is not required to show that she is completely destitute in order to qualify as an indigent within the meaning of 28 U.S.C. § 1915(a). Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 337-44 (1948). Grants 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).

         One district court has observed that the appropriate disposition of § 1915 applications is not always clear: “‘[T]here are no ‘magic formulas' for making the determination that the requisite in forma pauperis status is present, but instead, there is required a careful scrutiny and weighing of all of the relevant facts and circumstances involved in each particular situation.'” Carter v. Telectron, Inc., 452 F.Supp. 939, 942 (S.D. Tex. 1976) (quotation and internal citation omitted). In Carter, the district court, citing Adkins and cases in the Third and Fifth Circuits, set forth three legal tests that this court[1] has also used to evaluate in forma pauperis applications, in exercising their discretion under 28 U.S.C. § 1915(a):

(1) Is the litigant “barred from the Federal Courts by 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?”

452 F.Supp. at 943.

         As has been noted many times, the “privilege to proceed without posting security for costs and fees is reserved to the many truly impoverished litigants who, within the District Court's sound discretion, would remain without legal remedy if such privilege were not afforded to them.” Brewster v. North American Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972); see also Failor v. Califano, 79 F.R.D. 12, 13 (M.D. Pa. 1978); and Thomas v. Califano, 79 F.R.D. 14, 14-15 & n.2 (M.D. Pa. 1978).

         Upon a review of all the information before the Court, mindful of the tests set forth in Carter, it does not appear that Plaintiff would be barred from the federal courts because she simply does not have the money for the filing fee of $350.00, plus the administrative fee of $50.00, nor that paying that fee would effectively block her access to the courts by imposing on her an “undue hardship, ” nor that the fee would wring from her her last dollar or essentially render her destitute. Hence, Plaintiff must “confront the initial dilemma which faces most other potential civil litigants:

         Is the merit of the claim worth the cost of pursuing it?” Carter, 452 F.Supp. at 944 (internal citation omitted).

         RECOMMENDATION

         On the sole issue of this Report and Recommendation, it is recommended that the Application to Proceed Without ...


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