United States District Court, D. South Carolina, Beaufort Division
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on Plaintiff's pro se
complaint, alleging he was moved to the Maximum Security Unit
at J. Reuben Long Detention Center after receiving an
infraction with two false charges on it and without due
process. ECF No. 1. Plaintiff has filed a motion for leave to
proceed in forma pauperis. ECF No. 2.
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B)(2)(e), DSC, this matter was referred to United
States Magistrate Judge Bristow Marchant for pre-trial
proceedings and a Report and Recommendation. On February 4
2019, the Magistrate Judge issued a Report recommending
Plaintiff's motion to proceed in forma pauperis
be denied. ECF No. 11. The Magistrate Judge advised Plaintiff
of the procedures and requirements for filing objections to
the Report and Recommendation and the serious consequences if
he failed to do so. Plaintiff filed objections on February
11, 2019. ECF No. 13.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
court. See Mathews v. Weber, 423 U.S. 261 (1976).
The court is charged with making a de novo determination of
any portion of the Report and Recommendation of the
Magistrate Judge to which a specific objection is made. The
court may accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or recommit the
matter to the Magistrate Judge with instructions.
See 28 U.S.C. § 636(b). The court reviews the
Report only for clear error in the absence of an objection.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that
“in 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 the record in order to accept the recommendation.”)
reviewing the record of this matter, the applicable law, the
Report and Recommendation of the Magistrate Judge, and
Plaintiff's objections, the court agrees with the Report
and therefore adopts and incorporates it as part of this
order. Plaintiff's motion for leave to file in forma
pauperis notes he received $2, 975 monthly in VA
disability and had a balance of $12, 000 in his checking or
savings account. ECF No. 11. In his objections, Plaintiff
notes he has since been convicted of first-degree
manslaughter and sentenced to 15 years in prison. ECF No. 13.
Because of this, he notes his VA disability will be reduced
to about $225 per month and that his savings balance has been
reduced to about $3, 000 after paying off his truck and an
investigation for his criminal attorney. Id. He
argues he will “need some money to find a place to live
when he is released and plaintiff will have to purchase a
vehical [sic] when he is released from
the change in circumstances since he filed this action,
Plaintiff does not appear to be currently indigent and has
ample funds in bank accounts (approximately $3000) to allow
immediate access to the courts if the filing fee is required.
Although he argues he will need funds when he is released
from prison, that is years away. While a litigant does not
have to be “absolutely destitute to enjoy the
benefits” of in forma pauperis status, it does
not appear Plaintiff will have to “choose between
abandoning a potentially meritorious claim or foregoing the
necessities of life.” Adkins v. E.I. DuPont De
Nemours & Co., 335 U.S. 331, 339 (1948); Compare
Oren v. W. Virginia Dep't of Pub. Safety, 978 F.2d
1255 (4th Cir. 1992) (reversing district court's denial
of motion to proceed in forma pauperis when the
plaintiff had not worked for five years, had only $103 in his
bank account, and his only income was from Social Security),
with Karahalios v. Horry County Council, No.
4:17-cv-00393, 2017 WL 1223697 (D.S.C. 2017) (district court
adopted Report recommending denial of motion to proceed
in forma pauperis when the plaintiff received $3100
monthly from disability benefits, listed expenses of $2812
per month, and had $960 in savings). Plaintiff's motion
to proceed in forma pauperis is denied. Plaintiff
shall have 31 days from entry of this Order to pay the full
filing fee for this matter. If Plaintiff does not pay the
full filing fee within the time allowed, or seek an extension
of time in which to do so, this case shall, by additional
order of this court, be dismissed without prejudice and
without service of process.