United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant United States Magistrate Judge
sole issue in this Report and Recommendation is whether
Plaintiff should be required to pay the filing fee, or
whether his financial condition justifies the waiver of the
payment. Plaintiff has commenced this action pursuant to 42
U.S.C. § 1983, seeking damages and other relief against
employees of the J. Reuben Long Detention Center, where
Plaintiff was detained at the time of the alleged
pretrial proceedings in this matter have been referred to the
undersigned pursuant to Local Civil Rule 73.02(B)(2)(D.S.C).
The United States Court of Appeals for the Fourth Circuit has
held that, absent consent to the jurisdiction of the
magistrate judge, proper review of a magistrate judge's
denial of a plaintiff s motion to proceed in forma pauperis
is in the district court. Gent v. Radford Univ., 187
F.3d 629 at * 1 (4th Cir. 1999). The Court of Appeals,
however, did not specify the standard of review. Id.
For the reasons that follow, the undersigned recommends
denying Plaintiffs request for indigent status.
submitted a Motion for Leave to Proceed in forma
pauperis by filing a completed Form AO 240. ECF No. 2. On the
Form AO 240, Plaintiff acknowledges receiving "$2,
975.00 monthly from the VA" and lists a balance of $12,
000.00 in a checking or savings account. He also states that
he owns an automobile worth $8, 000, on which he owes $6, 000
and lists no persons dependent on him for support. ECF No. 2.
With his Complaint, Plaintiff provided what appears to be an
account summary from the detention center which lists an
account balance of $1, 081.19. ECF No. 1-1 at 12-14.
litigant is not required to show that he or 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,
however, has commented that it is sometimes difficult to
decide § 1915 applications: "[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 the relevant facts and circumstances involved in each
particular situation." Carter v. Telectron.
Inc.. 452 F.Supp. 939, 942 (S.D. Tex. 1976) see
Collier v. Colvin. No. 2:13-3323-DCN-BHH, 2014 WL
468946, at *2 (D.S.C. Feb. 5, 2014).
Carter, the district court, citing Adkins
and other cases, set forth a three-part list of discretionary
factors to be evaluated under 28 U.S.C. § 1915(a):
(1) Is the litigant barred from the federal courts by the
reason of his or her "impecunity?"
(2) Is his or her "access to the courts blocked by the
imposition of an undue hardship?"
(3) Is the litigant forced to contribute his or her
"last dollar," or render himself or herself
"destitute" to prosecute his or her claim?
Carter. 452 F.Supp. at 943: see also
Abbot v. Comm'r of Soc. Sec. No. 4:10-2253-JFA-TER,
2010 WL 4226151, at *1 (D.S.C. Sept. 17, 2010);
Schoenfeld v. Donoghue. No. 4:07-617-RBH-TER, 2007
WL 1302659, at *3 (D.S.C. May 2, 2007). Upon review of the
information in the Form AO 240, it does not appear that
Plaintiff would be rendered destitute by paying the fee of
$400 (the $350 filing fee plus a $50 administrative fee), nor
is there any indication that requiring payment of the filing
fee would impose an undue hardship or effectively block his
access to the courts.
on the foregoing, it is recommended that Plaintiffs motion
for leave to proceed in forma pauperis (ECF No. 2)
be denied. If this recommendation is
accepted by the district court, it is also recommended that
Plaintiff be given 31 days to pay the $400 fee (filing fee
plus administrative fee). See Collier v.
Colvin. 2014 WL 468946, at * 1. If Plaintiff does not
pay the fee, then this case should be dismissed. However, if
Plaintiff does pay the fee, it should be returned to the
undersigned for further initial review.
attention is directed to the important notice on the next
of Right to File Objections to Report ...