Carter v. Telectron, Inc.
Decision Date | 03 December 1976 |
Docket Number | Civ. A. No. 71-H-944. |
Citation | 452 F. Supp. 939 |
Parties | Albert H. CARTER v. TELECTRON, INC. |
Court | U.S. District Court — Southern District of Texas |
Albert H. Carter, plaintiff in the above-styled and numbered cases, has requested leave to proceed in forma pauperis in Civil Action 76-H-1342, styled Carter, et al. v. Estelle, et al., 519 F.2d 1136 (5th Cir.). Because the determination of plaintiff's status as a pauper under 28 U.S.C. § 1915 is relevant to all pending litigation filed by plaintiff in which he has proceeded as a pauper, this Order is applicable to and is therefore entered in each of the actions listed above.
For the reasons discussed herein, Albert H. Carter is denied permission to proceed in forma pauperis in this Court. Accordingly, because of plaintiff's changed circumstances, as hereinafter described, the Court determines that the failure of plaintiff to pay to the Court Clerk the filing fee and costs of service in any of the above-listed actions within thirty (30) days will result in the dismissal of the lawsuit or, in the case of multiple-plaintiff actions, in plaintiff's dismissal from the action.
Carter, et al. v. Estelle, et al., Civil Action 76-H-1342, was transferred to this Court's docket from the Eastern District of Texas, Tyler Division, on August 10, 1976. Because the in forma pauperis affidavits of plaintiffs, including plaintiff Carter, were not on the recently-revised forms of the Southern District of Texas, the Clerk of the Court sent to each plaintiff on October 10, 1976, the appropriate form for completion. The notarized affidavit of Albert H. Carter was filed on November 9, 1976, after two prior submissions by plaintiff Carter of October 18, 1976, and November 1, 1976, had been returned to him for failure to complete the recently-revised, as opposed to an outdated, form of affidavit to proceed in forma pauperis.
Question No. 6 in the revised affidavit asks the following question:
Plaintiff Carter's written response under oath was as follows:
However, upon discovery by the Court of the opinion of the Court of Claims in Carter v. United States, 509 F.2d 1150 (1975), reaffirmed, 518 F.2d 1199, 207 Ct.Cl. 316 cert. denied, 1976, 423 U.S. 1076, 96 S.Ct. 861, 47 L.Ed.2d 86, granting plaintiff relief and remanding back to the trial division of the Court of Claims for a determination of damages due plaintiff, and in light of plaintiff's failure to include such action in his response under oath to Question No. 6, this Court entered on November 15, 1976, the following Order:
The attached affidavit for completion stated:
Plaintiff submitted a completed, verified affidavit in response to the Court's November 15, 1976, Order on November 17, 1976, in which, in lieu of answering each delineated question on the affidavit, he stated under oath as follows:
Based upon the facts disclosed by plaintiff, and in order to confirm the statements of plaintiff, the Court contacted the United States Court of Claims and the General Accounting Office to inquire as to the current status of the judgment. In response to the Court's inquiry, Mr. Frank T. Peartree, Clerk, United States Court of Claims, sent to the Court certified copies of two relevant documents which were filed as a matter of record on November 23, 1976, and are attached to this Order: (1) a letter from Mr. Peartree to Mr. Albert H. Carter at 5901 Weber, Apt. 3403, Corpus Christi, Texas 78413, informing Mr. Carter of the procedure to follow in collecting the final judgment and enclosing the (2) transcript of judgment in Albert H. Carter v. United States, 509 F.2d 1150 (United States Court of Claims). Additionally, the Court has received a copy of a letter dated November 18, 1976, from Mr. H. J. Shahan, Chief, Payment Claims Branch, General Accounting Office, addressed to Mr. Albert H. Carter, c/o Ellis Unit, Route 3, Huntsville, Texas 77340, explaining the procedure to be followed in collecting the $5,486.76 award pursuant to the final judgment of April 2, 1976, in Court of Claims No. 127-66. The Court has learned from the General Accounting Office that plaintiff Carter has, within the past week, requested disbursement of the award, and that plaintiff's application presently is being processed.
Based upon plaintiff's affidavits of November 9, 1976, and November 17, 1976, and the documents submitted to this Court on November 23, 1976, the Court determines that plaintiff has the economic resources to finance the prosecution of his multiple private actions in that he has the present right to collect an outstanding court judgment in the amount of $5,486.76. Plaintiff therefore does not qualify as an indigent within the scope of 28 U.S.C. § 1915.
Section 1915(a) of 28 U.S.C. provides:
As this Court previously has stated:
". . . there are no `magic formulas' for making the determination that the requisite in forma pauperis status is present, but instead, there is required a careful scrutiny and weighing of all of the relevant facts and circumstances involved in each particular situation."
Dreyer v. Jalet, 349 F.Supp. 452 (S.D.Tex. 1972), aff'd, 479 F.2d 1044 (5th Cir. 1973). Although the question of whether or not a particular litigant's financial situation qualifies him for the benefits of the statute is many times difficult, see, e. g., Souder v. McGuire, 516 F.2d 820 (3rd Cir. 1975), it is axiomatic that a litigant who presently has available to him funds in excess of $5,000.00 does not qualify as a pauper.
Because plaintiff is no longer indigent, he may no longer prosecute at public expense the large number of actions presently on file in this Court. See Perry v. Walker, (1844) 1 Colly.Ch.Cas. 229, 63 Eng. Reprint, 396, 31 L.J.Ch.N.S. 75, 8 Jur. 680, discussed in 6 A.L.R. 1281 at 1284 (1920); Moyers v. Moyers, (1872) 11 Heisk. (Tenn.) 495, discussed in...
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