United States District Court, S.D. Mississippi, Southern Division
REPORT AND RECOMMENDATION THAT PLAINTIFF'S
APPLICATION TO PROCEED IN FORMA PAUPERIS BE DENIED
C. GARGIULO UNITED STATES MAGISTRATE JUDGE
THE COURT is Plaintiff Fennon Rogers' Application to
Proceed in forma pauperis. (ECF No. 2). The
undersigned recommends that Plaintiff's Application be
denied and that Plaintiff be directed to pay the $400.00
civil filing fee.
proceeding pro se, filed his Complaint (ECF No. 1)
on December 18, 2018. Plaintiff has sued Jim Hood, Attorney
General of Mississippi, and Assistant Attorney General of
Mississippi, Patrick Beasley. Plaintiff's theory of
recovery against these Defendants is unclear. The only facts
stated in the Complaint follow (all sic in original):
Because of all that has happened to me and my health is from
all the worries from the Attorney General. Since 2010, I had
one stroke 2013 I had a heart attack, 2015 I had another
stroke, Jan 2017, I have liver cancer and this March 2018,
Oshner's Hospital in New Orleans, La they tell me they
have the cancer under control, I still have to go in every 3
month for a Kat Scan. Since my cancer started, I became an
Anemia and have to take transfusions some time every 3 or 4
weeks. I take shots once a week.
(ECF No. 1, at 5).
Court “may authorize the commencement, prosecution or
defense of any suit, action or proceeding, civil or criminal,
or appeal therein, without prepayment of costs or security
thereof . . . .” 28 U.S.C. § 1915(a)(1).
“Section 1915(a) is intended to provide access to
federal courts for plaintiffs who lack the financial
resources to pay any part of the statutory filing
costs.” Prows v. Kastner, 842 F.2d 138, 140
(5th Cir. 1988). The Court “has wide discretion in
denying an application to proceed IFP under 28 U.S.C. §
1915.” Flowers v. Turbine Support Div., 507
F.2d 1242, 1244 (5th Cir. 1975), superseded by statute on
other grounds as recognized in Thompson v. Drewry, 138
F.3d 984, 985-86 (5th Cir. 1998). “Whether a party may
proceed [in forma pauperis] in the district court is based
solely upon economic criteria.” Bell v.
Children's Protective Servs., 506 Fed.Appx. 327, 327
(5th Cir. 2013) (citing Watson v. Ault, 525 F.2d
886, 891 (5th Cir. 1976)). “Poverty sufficient to
qualify does not require absolute destitution.”
Id. (citing Adkins v. E.I. Du Pont de Nemours &
Co., 335 U.S. 331, 339 (1948)). “The central
question is whether the movant can afford the costs without
undue hardship or deprivation of the necessities of
life.” Id. (citing Adkins, 335 U.S.
Court must examine the financial condition of the applicant
in order to determine whether the payment of fees would cause
undue hardship. Prows, 842 F.2d at 140. “This
entails a review of other demands on individual
plaintiffs' financial resources, including whether the
expenses are discretionary or mandatory.” Id.
Court and others have used the United States Department of
Health & Human Services' annual Federal Poverty
Guidelines to assess whether a plaintiff's income exceeds
the poverty level. Young v. Citi Mortg., Inc., No.
3:13cv836-DCB-MTP, 2014 WL 1883675, *2 (S.D.Miss. May 12,
2014)(collecting cases). Plaintiff is married and claims a
twenty-three-year-old stepson as a dependent. Plaintiff
reports $2, 176.50 in monthly income. The January 2019
poverty guidelines provide that the poverty guideline for a
three-person household is $21, 330.00. Plaintiff's
yearly income of $26, 118.00 well surpasses the poverty
guideline. Plaintiff's Application reflects that
Plaintiff can afford the cost of the civil filing fee without
undue hardship or deprivation of the necessities of life.
Plaintiff's Application to Proceed with Prepaying Fees or
Costs should be denied.
is advised that it is his responsibility to prosecute this
case and that the case cannot proceed until Defendants have
been served with a summons and a copy of the Complaint.
Federal Rule of Civil Procedure 41 confers upon a district
court the authority to dismiss an action sua sponte
for failure to prosecute or for failure to comply with a
court order. McCullough v. Lynaugh, 835 F.2d 1126,
1127 (5th Cir. 1988) (citing Link v. Wabash R.R.
Co., 370 U.S. 626, 630-31 (1962)). “This authority
flows from the court's inherent power to control its
docket and prevent undue delays in the disposition of pending
cases.” Boudwin v. Graystone Ins. Co., 756
F.2d 399, 401 (5th Cir. 1985). A court must be able to clear
its calendar of cases that remain dormant because of the
inaction or dilatoriness of the parties seeking relief in
order to achieve the orderly and expeditious disposition of
cases. See Link, 370 U.S. at 630-31.
Plaintiff's responsibility to prepare the summons to be
served on Defendants and to present the prepared summons to
the Clerk of Court for issuance. Fed.R.Civ.P. 4(b). A form to
request waiver of service can be found in Federal Rule of
Civil Procedure 4. Plaintiff is cautioned that this case may
be dismissed without prejudice if Defendant “is not
served within 90 days after the complaint is filed . . .
.” Fed.R.Civ.P. 4(m). Failure of Plaintiff to keep the
Court apprised of his current address may also result in
dismissal of this case without prejudice and without further
notice to Plaintiff.
the recommendation of the undersigned ...