Opinion
No. 4:19-CV-00005-D
01-14-2019
Larry Squires, Plaintiff, v. Merit System Protection Board and U.S. Department of the the Navy, Defendants.
Memorandum & Recommendation.
Plaintiff Lary Squires asks the court to allow him to proceed against Defendants Merit System Protection Board and U.S. Department of the Navy without paying the required filing fee or other costs normally associated with a civil lawsuit (otherwise known as proceeding "in forma pauperis" or "IFP"). D.E. 1.
In Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331 (1948), the Supreme Court first set forth the governing standard. It held: "[w]e think an affidavit is sufficient which states that one cannot because of his poverty 'pay or give security for the costs . . . and still be able to provide' himself and dependents 'with the necessities of life." Id. at 339; Rowland v. California Men's Colony, Unit II Men's Advisory Council, 504 U.S. 194,203 (1993).
The court has considered Squires's affidavit. The application reveals that Squires's employment earns him between $8,300 and $8,400 in monthly income. His monthly expenses total $5,416. Thus, his income exceeds his expenses by approximately $3,000 per month. Given his current financial status, plaintiff has failed to demonstrate sufficient evidence indicating that payment of the required court costs would deprive him or his family of the "necessities of life." See Adkins, 335 U.S. at 339.
Squires states his monthly income and expenses may change in the next 12 months due to "recovery and replacement of all household furniture and clothing" following Hurricane Florence and "a highly likely future relocation due to transfer of employment[.]" D.E. 1 at 5. But such future financial changes is speculative at best and evidence of recently-expended resources stemming from hurricane damage is not apparent in the application. Given these factors, coupled with the extent to which his current income exceeds his expenses, the court cannot conclude that Squires's payment of the required filing fee will impose the type of hardship contemplated by Adkins.
Therefore, the undersigned recommends that the court deny Squires's Application to Proceed without Prepayment of Fees and direct that Squires tender to the clerk the filing fee of $400.00 or file an amended IFP petition demonstrating that he is entitled to proceed without prepayment of fees no later than February 8, 2019. The undersigned further recommends that the court direct the clerk to close this matter if Squires fails to pay the filing fee in the allotted time or submit a properly executed application to proceed in forma pauperis.
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: January 14, 2019
/s/_________
Robert T. Numbers, II
United States Magistrate Judge