United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. Hodges Columbia, South Carolina United States Magistrate
sole issue in this Report and Recommendation is whether
Edward Garrett (“Plaintiff”) should be required
to pay the filing fee, or whether Plaintiff's financial
condition justifies waiver of the payment. Plaintiff has
commenced this action pursuant to 42 U.S.C. § 405(g)
requesting review of the Commissioner of Social
Security's decision denying his application for
disability benefits. All pretrial proceedings in this matter
were referred to the undersigned pursuant to Local Civ. Rule
73.02(B)(2)(a) (D.S.C.). For the reasons that follow, the
undersigned recommends denying Plaintiff's request for
filed an Application to Proceed in District Court without
Prepaying Fees or Costs (Form AO-240). [ECF No. 3]. In the
Form AO-240, Plaintiff states that his monthly income totals
$3759.50 and his wife has a monthly income of $1108.
Id. at 1. In response to whether he owns any
vehicles or real estate, he lists 5 automobiles and 27 real
estate properties. Id. at 2. He lists a number of
expenses, but their total is less than his monthly income,
even if the income of his wife, whom he lists as a dependent,
is not included. Id. at 2. He lists as debts two
medical bills totaling $1875.
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). However, 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 that 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. §
636(b)(1)(A). Id. at 187. The Tenth and Fifth
Circuits have reached similar conclusions. See Lister v.
Dept. 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 this
Report and Recommendation to preserve Plaintiff's
opportunity to obtain a de novo review by the
district judge on objections.
litigant is not required to show that he 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).
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. § 1915:
(1) Is the litigant barred from the federal courts by the
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?
Id. at 943; see also Abbot v. Commissioner of
Social Security, C/A No. 4:10- 2253-JFA-TER, 2010 WL
4226151, at *1 (D.S.C. Sept. 17, 2010); Schoenfeld v.
Donaghue, C/A No. 4:07-617-RBH, 2007 WL 1302659, at *3
(D.S.C. May 2, 2007).
review of the information before the court, and mindful of
the tests set forth in Carter, it does not appear
that Plaintiff would be rendered destitute by paying the
filing fee of $400 (including a $50 administrative fee), nor
is there any indication that requiring payment of the filing
fee would impose an undue hardship or effectively block
Plaintiff's access to the courts. See Carter,
452 F.Supp. at 942 (holding plaintiff was not indigent
because he had the right to collect a judgment of $5486.76);
see also Ali v. Cuyler, 547 F.Supp. 129 (E.D. Pa.
1982) (finding $450.00 in savings sufficient to allow the
plaintiff to pay the filing fee of $60.00 without foregoing
basic human needs). Therefore, the undersigned recommends
Plaintiff's Application to Proceed in District Court
without Prepaying Fees or Costs [ECF No. 3] be denied. III.
Conclusion and Recommendation For the foregoing reasons, it
is recommended that the district judge deny Plaintiff's
Application to Proceed Without Prepayment of Fees and
Affidavit. If the district judge accepts this recommendation,
Plaintiff would have 14 days from the date of the order
denying to submit the required filing fee.
parties are directed to note the important information in the
attached “Notice of Right to File Objections to Report
and Recommendation.”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