Opinion
Civil Action 1:22-cv-917 RDA/IDD
10-06-2022
RUKMINESH MEHTA Plaintiff, v. UNITED STATES OF AMERICA et al Defendants.
REPORT & RECOMMENDATION
IVAN D. DAVIS, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Plaintiff's Motion for Leave to Proceed In Forma Pauperis [Dkt. No. 2]. Having reviewed the Motion, the undersigned Magistrate Judge recommends denying the Motion for the reasons that follow.
I. Background
Pursuant to 28 U.S.C. § 1915(e)(2)(A), a court must dismiss a case proceeding in forma pauperis if it “determines that the allegation of poverty is untrue.” A litigant need not be “absolutely destitute” to proceed in forma pauperis; however, “in forma pauperis status is ‘a privilege, not a right,'” and is only available to a litigant who establishes an inability, due to poverty, to pay the requisite filing fees and still provide for “the necessities of life.” El v. U.S. Dep't of Com., No. 2:15CV532, 2016 WL 9223874, at *1 (E.D. Va. Sept. 21, 2016) quoting Kunamneni v. Locke, Nos. 1:09cv005; 1:09cv450, 2010 U.S. Dist. LEXIS 46876, at *3-4 (E.D. Va. May 12, 2010). When reviewing an in forma pauperis application, a court must afford due consideration to a party's discretionary income. Manzaneda v. Duenas, No. 1:18CV40, 2018 WL 10149410, at *1 (E.D. Va. Jan. 18, 2018) citing Brewer v. City of Overland Park Police Dep't, 24 Fed.Appx. 977, 979 (10th Cir. 2002) (denying an IFP where party's monthly income exceeded his monthly expenses by “a few hundred dollars” because his discretionary income was sufficient to pay the filing fees).
Here, Plaintiff's application for In Forma Pauperis states that Plaintiff has $1,300,000 in a brokerage account. Dkt. No. 2 at 2. Plaintiff concedes that, while he did not have access to the account at the time of the complaint, he “should be able to [access the account] in the next few days, so as to pay the filing fees.” Id. at 5. This amount of discretionary income would allow Plaintiff to pay the requisite filing fees and provide for the necessities of life. The Court, therefore, finds that Plaintiff has sufficient discretionary income available such that his allegation of poverty is untrue.
II. Recommendation
For the foregoing reasons, the undersigned recommends DENYING Plaintiff's Motion for Leave to Proceed In Forma Pauperis.
III. Notice
By mailing copies of this Report and Recommendation, the Court notifies the parties as follows. Objections to this Report and Recommendation, pursuant to 28 U.S.C. § 636 and Rule 72(b) of the Federal Rules of Civil Procedure, must be filed within fourteen (14) days of service on you of this Report and Recommendation. A failure to file timely objections to this Report and Recommendation waives appellate review of the substance of the Report and Recommendation and waives appellate review of a judgment based on this Report and Recommendation.
The Clerk is directed to send a copy of this Report and Recommendation to all counsel of record and to Plaintiff Rukminesh Mehta at: Mr. Rukminesh Mehta, 467 Hernodon Parkway Suite 320 Herndon, Va 20170.