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Johnson v. James

United States District Court, D. South Carolina

January 8, 2019

Michael T. Johnson, Sr. Plaintiff,
v.
Deborah Lee James, in her official capacity as, Secretary, United States Air Force, 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 his financial condition justifies waiver of the filing fee. Plaintiff has filed an Application to Proceed Without Prepaying Fees or Costs (long form), also known as an application to proceed in forma pauperis. In his application, Plaintiff states his household[1] income is $14, 298 monthly. He reports that he and his spouse have $200 in cash and his spouse has $1, 700 total in various bank accounts. Household expenses are listed at $10, 893 total per month. Some of these expenses include: $1, 373 monthly for “timeshare/tithes/investments” and $551 total for life insurance.

         All of this information raises questions over the application to proceed without prepayment of fees. A 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). 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[2] 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 he simply does not have the money for the filing fee of $350.00, plus administrative fee of $50, nor that paying that fee would effectively block his access to the courts by imposing on him an “undue hardship, ” nor that the fee would wring from him his last dollar or essentially render him 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).

         It does not appear Plaintiff will have to choose between abandoning a potentially meritorious claim or foregoing the necessities of life.

         RECOMMENDATION

         On the sole issue of this Report and Recommendation, it is recommended that the Application to Proceed ...


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