Opinion
NO. 4:20-CV-00026-FL
03-11-2020
Selena Kimberly Smith, Plaintiff v. Mary Ann Leon and Sheetz Corp., Defendants.
Memorandum & Recommendation
By Order dated February 21, 2020, the undersigned directed Smith file a particularized application in support of her motion to proceed in forma pauperis. D.E. 4. Despite this directive, Smith has neither filed a proper application nor requested additional time in which to do so.
Smith has not demonstrated she is entitled to proceed without full prepayment of costs. The application indicates that Plaintiff's household income between $3900 and $4700 per month and she received $774 in child support. D.E. 1 at 1. Included in the itemized list of Smith's expenses is $1000 per month in clothing. Id. at 4. Yet the application tallies both her monthly income and expenses as "0." Id. at 2, 5.
Smith and her husband share three minor children and their annual household income is over $56,000. The Poverty Guidelines threshold for a family of five is $30,680. See 2020 Poverty Guidelines, https://aspe.hhs.gov/poverty-guidelines (last visited March 9, 2020). So Smith income exceeds the Poverty Guidelines threshold by over $25,000.
An impoverished plaintiff does not have to prove that he or she is "absolutely destitute to enjoy the benefit of the statute." Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (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. N. Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). An affidavit to proceed IFP is sufficient if it states that one cannot, because of his or her poverty, afford to pay for costs of litigation and still provide for the necessities of life. Adkins, 335 U.S. at 339.
Based on the information contained in the motion, the undersigned finds that Smith have not put forth sufficient evidence demonstrating that she would be denied the "necessities of life" if her application is denied. See Moreno v. Comm'r of Soc. Sec., No. 1:19-CV-1580-SAB, 2019 WL 5825872, at *1 (E.D. Cal. Nov. 7, 2019); Squires v. Merit Sys. Prot. Bd., No. 4:19-CV-0005-D, 2019 WL 1274931, at *1 (E.D.N.C. Jan. 14, 2019) (plaintiff not entitled to proceed in forma pauperis where his monthly income exceeded his monthly expenses by almost $3000), adopted, 2019 WL 1281373 (Jan. 24, 2019). And Smith's claimed monthly clothing expenses of $1000 and motor vehicle payments, insurance, and transportation costs exceeding $1000 appear excessive and unnecessary. See Lewis v. McKinley County Bd. of Cty. Com'rs, Nos. 10-2221, 11-2000, 425 F. App'x. 723, 732, 2011 WL 2194013, *8 (10th Cir. June 7, 2011) (adopting district court's reduction of claimed monthly expenses by amounts that were excessive or not for necessities).
Given Smith's failure to submit a properly completed application and to comply with an order of court, the undersigned recommends that the court deny without prejudice Smith's application to proceed in forma pauperis (D.E. 1) and direct her to tender the filing fee of $400.00 within 30 days or face dismissal of her complaint.
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: March 11, 2020
/s/_________
Robert T. Numbers, II
United States Magistrate Judge