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 Diana
Jordan (“Plaintiff”) should be required to pay
the filing fee or whether her financial condition justifies
waiver of the payment. 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. 3]. In the Form AO-240, Plaintiff
states she is unemployed. Id. at 1. She indicates
she receives monthly Supplemental Nutrition Assistance
Program benefits in the amount of $353 and $15 gasoline
vouchers. Id. She also receives $15 per quarter to
buy shoes and clothes. Id. Plaintiff indicates she
has $10.67 in a checking or savings account and states she
owns a home valued at $120, 000 and a vehicle valued at $1,
500. Id. at 2. She lists her monthly expenses as
$381.09 for electricity and $47.06 for water. Id. In
addition, Plaintiff owes $1, 049 annually for property taxes,
$99.73 annually for car taxes, $184 annually for homeowners
insurance, and $128 every six months for car insurance.
Id. Plaintiff lists one dependent and indicates she
owes $1, 089 to her homeowners association. Id.
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. While Plaintiff indicates
she is unemployed, she states she owns a home worth $120,
000. It, therefore, 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 Plaintiff's access to the
is a frequent filer of federal lawsuits and has filed at
least nineteen federal lawsuits since June 2018. The court
granted Plaintiff in forma pauperis status in eight of her
cases, and each case was summarily dismissed or recommended
for summary dismissal, for failure to state a claim upon
which relief may be granted. Plaintiff has repeatedly been
informed, through reports and recommendations, that federal
courts are courts of limited jurisdiction. Plaintiff,
however, persists in filing lawsuits, such as the one
currently under review, that are facially inadequate to state
plausible federal claims, placing an unreasonable demand on
limited judicial resources. The right to proceed in forma
pauperis is not without limitations and Plaintiffs continued
filing of frivolous cases further supports the denial of her
in forma pauperis application. See Free v. United
States,879 F.2d 1535, 1536 (7th Cir. 1989)
(“Abusers of the judicial process are not entitled to
sue . . . without paying the normal filing fees.”).
III. Conclusion and Recommendation For the foregoing reasons,
the undersigned recommends the ...