United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
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. Id.
Plaintiff indicates she has $10 in a checking or savings
account and states she owns a home valued at $120, 000 and a
vehicle valued at $800. Id. at 2. She lists her
monthly expenses as $483.37 for electricity and $55.81 for
water. Id. In addition, Plaintiff owes $1, 049.09
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 23 federal lawsuits, in addition to this case, since
June 2018. See Jordan v. Wilson, 3:18-1589-JFA-SVH;
Jordan v. Foldessey, 3:18-2083-JFA-SVH, Jordan
v. J.P. Morgan Chase Bank, 3:18-2195-JFA-SVH;
3:18-2280-JFA-SVH, Jordan v. J.P. Morgan Chase Bank,
3:18-2361-JFA-SVH; Jordan v. Gunter,
3:18-2789-JFA-SVH; Jordan v. Richland County Register of
Deeds, 3:18-2857-JFA-SVH; Jordan v. Day,
3:18-2869-JFA-SVH; Jordan v. Internal Revenue
Service, 3:18-2997-JFA-SVH; Jordan v. Snyder,
3:19-1821-JFA-SVH; Jordan v. Ballentine,
3:19-1865-JFA-SVH; Jordan v. Snyder, 3:19-2054- SVH;
Jordan v. Hite, 3:18-2040-JFA-SVH; Jordan v.
United States Department of Labor, 3:18-2805-JFA-SVH;
Jordan v. Wilson, 3:19-1518-JFA-SVH; Jordan v.
Commissioner of Social Security Administration,
1:18-2446-JFA-SVH; Jordan v. United States Department of
Labor, 3:18-2754-JFA-SVH; Jordan v. U.S. Department
of the Treasury, 3:18-2937-JFA-SVH; Jordan v.
District 5 Foundation for Educational Excellence,
3:18-2924-JFA-SVH; Jordan v. Jordan,
3:18-2925-JFA-SVH; Jordan v. District 5 Foundation for
Educational Excellence, 3:19-772-JFA-SVH; Jordan v.
Szabo, 3:19-1502-JFA-SVH; Jordan v. Jordan,
3:19-2561-JFA-SVH. 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
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 Plaintiff's 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.”).
Conclusion and Recommendation
foregoing reasons, the undersigned recommends the district
judge deny Plaintiffs application for leave to proceed in
forma pauperis. [ECF No. 3]. If the district judge accepts
this recommendation, it is further recommended Plaintiff be
allowed fourteen days from ...