United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant, United States Magistrate Judge.
sole issue in this Report and Recommendation whether
Plaintiff, Ervin Edmond Hagan, should be required to pay the
filing fee or whether Plaintiff's financial condition
justifies waiver of the payment. Plaintiff commenced this
action pursuant to 42 U.S.C. § 405(g) requesting review
of the Commissioner of Social Security's decision denying
his application for disability benefits. All pretrial
proceedings in this matter were referred to the undersigned
pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.).
filed an Application to Proceed in District Court without
Prepaying Fees or Costs (Form AO-240 - Short Form) [ECF No.
4] and, in response to the Court's order (ECF No. 7), he
completed a Form AO-239 (Application to Proceed in District
Court without Prepaying Fees or Costs - Long Form) and
provided an answer to the Court's Special Interrogatory
[ECF No. 10]. Plaintiff reports monthly retirement and
disability income totaling $6, 013 per month, a home valued
at $550, 000,  two cars valued at a total of $85,
000, and $39 in checking/savings accounts. He reports two
minor dependents and that he and his spouse (who does not
have a separate income) have monthly expenses totaling $ 7,
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). A litigant is not required to show that he 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). 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). The information provided
by Plaintiff raises questions over the application to proceed
without prepayment of fees.
Carter v. Telectron, Inc., 452 F.Supp. 939 (S.D.
Tex. 1976), the court, citing Adkins and cases in
the Third and Fifth Circuits, enunciated a legal test 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 his “impecunity”?
(2) Is his access to the courts blocked by the imposition of
an undue hardship?
(3) Is the litigant forced to contribute his last dollar, or
render himself destitute, to prosecute his claim?
Id at 943; see also Abbot v. Commissioner of
Social Security, C/A No. 4:10-2253-JFA-TER, 2010 WL
4226151, at *1 (D.S.C. Sept. 17, 2010), adopted by 2010 WL
4220550 (D.S.C. Oct. 20, 2010); Schoenfeld v.
Donaghue, C/A No. 4:07-617-RBH, 2007 WL 1302659, at *3
(D.S.C. May 2, 2007). Upon review of the information provided
to the Court, it does not appear that Plaintiff would be
rendered destitute by paying the filing fee of $400
(including a $50 administrative fee), nor is there any
indication that requiring payment of the filing fee would
impose an undue hardship or effectively block Plaintiffs
access to the courts. See Carter, 452 F.Supp. at 942
[holding plaintiff was not indigent because he had the right
to collect a judgment of $5, 486.76]; see also Ali v.
Cuyler, 547 F.Supp. 129 (E.D. Pa. 1982) [finding $450.00
in savings sufficient to allow the plaintiff to pay the
filing fee of $60.00 without foregoing basic human needs].
Plaintiff has significant income (over $72, 000 per year). In
determining what level of income constitutes poverty for
purposes of 28 U.S.C. § 1915(a)(1), other courts have
considered the poverty guidelines set by the United States
Department of Health and Human Services as one measure.
See, e.g., El v. U.S. Dep't of
Commerce, No. 2:15-cv-532, 2016 WL 9223874, at *1 (E.D.
Va. Sept. 21, 2016) Mann v. City of Moss Point, No.
1:14cv237, 2014 WL 4794544 (S.D.Miss. Sept. 25, 2014);
Bruton v. Colvin, No. 4:14-CV-083, 2014 WL 840993
(N.D. Tex. Mar. 4, 2014); Nelson v. Louise, No.
10-827, 2011 WL 3648632 (E.D. La. July 27, 2011); Walker
v. University of Texas Medical Branch, No. 1:08-CV-417,
2008 WL 4873733 (E.D. Tex. Oct. 30, 2008). Those guidelines
set the 2019 poverty level for a family of four at $25, 750
annually. See 84 Fed. Reg. 1167-02 (Feb. 1, 2019).
Plaintiffs income (which is more than two and one-half times
the poverty guideline) is significantly more than the Health
and Human Services 2019 poverty guidelines. He also has
significant assets, including a home and cars with a total
value of approximately $635, 000.00.
response to the special interrogatory, Plaintiff states that
his “income does not allow [him] to pay for all of
[his] current bills and [he is] therefore unable to pay the
filing fees.” (ECF No. 10 at 1). Courts, however, have
denied IFP applications even where the plaintiffs'
expenses exceed their income. See Slaughter v.
Vilsack, No. 4:12-cv-94, 2013 WL 1704909 (M.D. Ga. April
19, 2013). Here, Plaintiff's list of monthly expenses
includes more than $1, 900 per month for late model (2019 and
2018) vehicles and $1324 per month for utilities
(electricity, heating fuel, water, sewer, and
telephone). “Section 1915 is designed to
protect those litigants who suffer true financial hardship,
not those who are well-equipped to pay the filing fee but
choose to allocate their resources in a different
manner.” McCoy v. Colvin, No. 13-2068, 2013 WL
868682, at *1 (W.D. Ark. Mar. 7, 2013); see also
Mann, 2014 WL 4794544, at *2 (S.D.Miss. Sept. 25,
2014)[considering an applicant's two vehicles valued at a
combined $10, 500 when denying IFP status to an individual
whose monthly expenses exceeded his monthly income, noting
“courts have denied IFP applications even where the
plaintiffs' expenses exceed their income because the
plaintiffs had other assets”]; Gibbons v. United
States, No. 1:06CV75, 2007 WL 2060854, at *2 (N.D. W.Va.
July 12, 2007) [considering the value of a mobile home valued
at $3, 000 and an automobile valued at $2, 000 when denying
IFP status to a plaintiff earning $529 per month];
Scherer v. State, No. 06-2446-JWL, 2006 WL 3147731,
at *2 (D. Kan. Nov. 1, 2006)[considering the equity in the
plaintiff's “one extra vehicle” and home when
denying IFP status]; Ireland v. Reliance Standard Life
Ins. Co., No. 97-0563, 1997 WL 85008, at *1 (N.D. Cal.
Feb. 21, 1997)[denying in forma pauperis status despite
plaintiff's unemployment and no funds in a bank account
when she had $60, 000 of equity in her home]. Thus,
Plaintiff's argument should be rejected, his motion for
IFP should be denied, and he should be required to pay the
foregoing reasons, it is recommended that Plaintiffs
Application to Proceed Without Prepayment of Fees and
Affidavit (ECF No. 4) be denied.
attention is directed to the important notice on the next
page. October 28, 2019 Charleston, South Carolina
of Right to File Objections to Report ...