United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. HODGES UNITED STATES MAGISTRATE JUDGE.
sole issue in this Report and Recommendation is whether
Kristy Michelle Wolff (“Plaintiff”) should be
required to pay the filing fee, or whether her financial
condition justifies waiver of the payment. Plaintiff filed
this alleged breach of contract action against her former
employer, Capeside Psychiatry and Addiction Care, PLC
(“Defendant”), alleging it failed to comply with
terms of her employment contract. [ECF No. 1]. All pretrial
proceedings in this matter were referred to the undersigned
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule
73.02(B)(2)(g) (D.S.C.). For the following reasons, the
undersigned recommends the district judge deny
Plaintiff's request for indigent status.
submitted a short form application to proceed in district
court without prepaying fees or costs (“Form AO
240”). [ECF No. 2]. Plaintiff indicates she is
currently a full-time doctorate student, is self-employed,
and has earned approximately $1, 000 this year. Id.
at 1. She states she has not earned any other income and she
does not receive money from her husband. Id. She
states she has $100 in cash and owns a $200, 000 house
jointly with her husband, a Lexus RX 450h, and approximately
$15, 000 of jewelry. Id. at 2. Plaintiff lists
monthly expenses totaling $2, 452. Id. She indicates
she has one dependent and “many outstanding
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). 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 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. Dep't 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 a report and
recommendation to preserve Plaintiff's opportunity to
obtain de novo review by a district judge on
litigant is not required to show 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, 339-40 (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 her “impecunity”?
(2) Is her access to the courts blocked by the imposition of
an undue hardship?
(3) Is the litigant forced to contribute her last dollar, or
render herself destitute, to prosecute her claim?
Id. at 943; see also Murray v. Gossett, C/A
No. 3:13-2552-CMC-SVH, 2013 WL 5670907, at *2 (D.S.C. Oct.
17, 2013) (adopting and incorporating Report and
the information before the court, and considering the tests
set forth in Carter, the undersigned recommends the
court deny Plaintiff's motion. It does not appear
Plaintiff will have to choose between abandoning a
potentially meritorious claim or foregoing the necessities of
life to pay the $400 filing fee. Adkins, 335 U.S. at
339; see also Karahalios v. Horry County Council,
C/A No. 4:17-00393, 2017 WL 1223697 (D.S.C. 2017). It also
does not appear that paying the fee would render Plaintiff
destitute or impose an undue hardship or effectively block
her access to the courts.
court previously denied Plaintiff's motion to proceed
without prepaying fees and costs in another matter.
See Order, ECF No. 17, Wolff v. Bee Healthy
Medical Weight Loss Clinic, C/A No. 3:17-3339-CMC (Feb.
5, 2018). At that time, Plaintiff indicated receiving a
monthly income of $1, 500 and stated her husband earned $2,
800 per month. Id., ECF No. 10 at 2. Plaintiff also
listed approximately $1, 200 more in monthly expenses and
claimed an additional $10, 000 in ...