United States District Court, N.D. Mississippi, Greenville Division
M. BROWN UNITED STATES DISTRICT JUDGE.
the Court is the Report and Recommendation of United States
Magistrate Judge David A. Sanders, which recommends that
Janet Pernell's motion to proceed in forma pauperis be
denied. Doc. #4.
Background and Procedural History
October 23, 2018, Janet Pernell filed a complaint in this
Court challenging a final decision of the Commissioner of
Social Security denying her benefits. Doc. #1. The same day,
Pernell filed a motion to proceed in this action in forma
pauperis. Doc. #2.
October 24, 2018, United States Magistrate Judge David A.
Sanders issued a Report and Recommendation recommending that
Pernell's motion to proceed in forma pauperis be denied
because “the plaintiff is capable of paying court costs
in this action, though she may require some additional
time.” Doc. #4 at 2. On November 14, 2018, Pernell
filed “Plaintiff's Answer to Report and
Recommendation, ” stating “that she cannot pay
the … filing fee without taking [the] sums away from
other monthly expenses that she needs to survive.” Doc.
#5 at 1-2. Pernell “submits that if the filing fee
cannot be waived … her appeal [should] be
dismissed.” Id. at 2.
Standard of Review
28 U.S.C. § 636(b)(1)(C), “[a] judge of the court
shall make a de novo determination of those portions of the
report … to which objection is made.”
“[W]here there is no objection, the Court need only
determine whether the report and recommendation is clearly
erroneous or contrary to law.” United States v.
Alaniz, 278 F.Supp.3d 944, 948 (S.D. Tex. 2017) (citing
United States v. Wilson, 864 F.2d 1219, 1221 (5th
Cir. 1989)). It is unclear whether Pernell intended her
“Answer, ” which was not filed within the time
allowed for objections and which does not specifically
challenge any findings in the Report and Recommendation, to
be an objection to the Report and Recommendation. However,
the Court, out of an abundance of caution, will conduct a de
novo review of the Report and Recommendation.
U.S.C. § 1915(a)(1) provides that “any court of
the United States may authorize the commencement … of
any suit, action or proceeding, civil or criminal, …
without prepayment of fees” if the plaintiff shows
“that the person is unable to pay such fees
….” This statute does not provide an absolute
right to proceed in forma pauperis in the federal courts.
Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir. 1988).
“Rather[, ] it is a privilege extended to those unable
to pay filing fees when the action is not frivolous or
malicious.” Id. (alterations omitted).
“The decision whether to grant a request to proceed in
forma pauperis is committed to the discretion of the district
court.” Williams v. Estelle, 681 F.2d 946, 947
(5th Cir. 1982).
General factors that can be considered when deciding whether
to grant IFP status include: whether the complaint is
frivolous or malicious (see Johnson v. United States
Postal Serv., 861 F.2d 1475, 1485 (10th Cir. 1988));
whether the case concerns a prisoner, with special concern
placed on prisoner complaints (see Weller v.
Dickson, 314 F.2d 598, 601 (9th Cir. 1963) (Duniway, J.,
concurring)); and the nature of the mandatory and
discretionary demands on the applicant's financial
resources (see Prows v. Kastner, 842 F.2d 138, 140
(5th Cir. 1988)).
Brewer v. City of Overland Park Police Dep't, 24
Fed.Appx. 977, 979 (10th Cir. 2002). Additionally,
“federal courts have historically looked to assets such
as equity in real estate and automobiles in determining
eligibility for [in forma pauperis] status.”
Scherer v. State, No. 06-2446, 2006 WL 3147731, at
*2 (D. Kan. Nov. 1, 2006) (collecting cases).
the Court assumes without deciding that Pernell's social
security appeal is not frivolous or malicious. However, her
complaint does not implicate the “special
concern” placed on prisoner complaints. Furthermore,
Pernell's application shows a monthly income of $1, 893
and monthly expenses of $1, 640, and that she holds full
equity in a 2007 Nissan Altima and some undisclosed amount of
equity in her home. Under these circumstances, the Court
concludes that her motion to proceed in forma pauperis should
be denied. Having determined that Pernell's motion to
proceed in forma pauperis should be denied, the Court will
dismiss this action as requested by Pernell in her answer.
reasons above, the Report and Recommendation  is
ADOPTED and Pernell's motion to proceed
in forma pauperis  is DENIED. ...