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Rosenbaum v. Lowe

United States District Court, D. South Carolina

February 4, 2019

James Rosenbaum, Plaintiff,
v.
Sandra Lowe, Sargent; Dean Shover, Corporal; Barryon Smalls, Sargent, Defendants.

          REPORT AND RECOMMENDATION

          Bristow Marchant 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 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 incidents.[1]

         All 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.

         Plaintiff 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.

         A 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).

         In 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.

         Recommendation

         Based 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.

         Plaintiffs attention is directed to the important notice on the next page.

         Notice of Right to File Objections to Report ...


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