Johnson v. Victoria Fire & Cas. Co.

• Decision Date: 06 May 2019
• Docket Number: CA 19-0154-KD-MU
• Parties: ROBERT W. JOHNSON, Plaintiff, v. VICTORIA FIRE & CASUALTY COMPANY, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

ROBERT W. JOHNSON, Plaintiff, v. VICTORIA FIRE & CASUALTY COMPANY, et al., Defendants.

CA 19-0154-KD-MU

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

May 6, 2019

REPORT AND RECOMMENDATION

This action is before the Court on Plaintiff's amended pro se complaint (Doc. 5) and his motion to proceed without prepayment of fees and costs (Doc. 2), as amended (Doc. 4). This matter has been referred to the undersigned for pretrial disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72(a)(2)(S). Upon consideration of all relevant pleadings filed in this case, it is recommended that this Court DENY Plaintiff's motion to proceed without prepayment of fees (Doc. 2), as amended (Doc. 4), and it is further recommended that this action be DISMISSED WITHOUT PREJUDICE, prior to service of process, both because Plaintiff has failed to establish that this Court can exercise federal question jurisdiction in this matter and because he has failed to state a claim upon which relief can be granted, see 28 U.S.C. § 1915(e)(2)(B)(ii) (recognizing that a complaint may be dismissed for failure to state a claim upon which relief may be granted).

I. PLAINTIFF'S MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES (see Doc. 2), AS AMENDED (Doc. 4)

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On April 3, 2019, the undersigned ordered Plaintiff to complete and return this Court's form motion to proceed without prepayment of fees and costs. (Doc. 3, at 1). Johnson's initial motion (Doc. 2) was not on this Court's form (Doc. 3, at 1) and, in addition, as parenthetically noted by the undersigned, Plaintiff simply stated in "a one-paragraph note to the Clerk of Court that he is 'a poor person with no income as of to date.' (Doc. 2.)" (Doc. 3, at 1 n.1). And while Johnson completed all sections of this Court's IFP form (see Doc. 4), he has given this Court only slightly more information than that contained in his note to the Clerk of Court filed March 29, 2019 (Doc. 2). In both motions, Johnson gives his address (3345 Fish Avenue, Apt. 1, Bronx, New York 10469), a brief statement of his action, and that he is a poor person with no income. (Compare Doc. 2 with Doc. 4, at 1 & 3). The only "real" additional information Johnson has presented in his amended IFP motion is that he is a single individual with no dependents and the last date he was employed was in October 2012, when he received $150.00 monthly. (Doc. 4, at 1-2). Otherwise, Johnson's IFP is remarkable for a lack of information because although he has identified that he lives in an apartment in Bronx, New York (id. at 1), he states that he makes absolutely no monthly rental payments on the apartment (id. at 3), he has no assets or property (id. at 2-3), and he has no financial debts or obligations (id. at 3). And yet, despite indicating that he has absolutely no assets or income, Johnson eschewedanswering how he provided for his basic living needs of shelter, food, and clothing;¹ instead, he simply wrote the following: "I am a poor person with no income and due to above-said legal issues I am unable to provide for myself. . . . I am in dire need of above-said total punitive damages relief due to my 14^th Amendment rights being violated." (Id. at 3.)

The authority for granting a plaintiff permission to proceed without prepayment of fees and costs is found at 28 U.S.C. § 1915:

(a)(1) Subject to subsection (b), any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses [and] that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress.

28 U.S.C. § 1915(a)(1); see Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002) (affirming the application of § 1915's provisions to a non-prisoner's complaint).

"The in forma pauperis statute, 28 U.S.C. § 1915, ensures that indigent persons will have equal access to the judicial system." Attwood v. Singletary, 105 F.3d 610, 612-613 (11th Cir. 1997), citing Coppedge v. United States, 369 U.S. 438, 446, 82 S.Ct. 917, 921-922, 8 L.Ed.2d 21 (1962). The opportunity to proceed as an indigent in civil cases, created by statute, is not considered a right but a privilege, Rivera v. Allin, 144 F.3d 719, 724 (11th Cir.), cert. dismissed, 524 U.S. 978, 119 S.Ct. 27, 147 L.Ed.2d 787 (1998), and "should not be a broad highway into the federal courts[,]" Phillips v. Mashburn, 746 F.2d782, 785 (11th Cir. 1984). Thus, "a trial court has broad discretion in denying an application to proceed in forma pauperis under 28 U.S.C.A. § 1915, [but] must not act arbitrarily and it may not deny the application on erroneous grounds." Pace v. Evans, 709 F.2d 1428, 1429 (11th Cir. 1983), citing Flowers v. Turbine Support Division, 507 F.2d 1242, 1244 (5th Cir. 1975); see also Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 & 1306-1307 (11th Cir. 2004) ("[A] trial court has wide discretion in denying an application to proceed IFP under 28 U.S.C. § 1915. . . . However, in denying such applications a court must not act arbitrarily. Nor may it deny the application on erroneous grounds.").

"In order to authorize a litigant to proceed in forma pauperis, the court must make two determinations: first, whether the litigant is unable to pay the costs of commencing this action; and second, whether the action is frivolous or malicious." Boubonis v. Chater, 957 F.Supp. 1071, 1072 (E.D. Wis. 1997), citing 28 U.S.C. § 1915(a) & (e)(2)(B)(i). "While one need not be absolutely destitute to qualify for in forma pauperis status, such benefit is allowed only when a movant cannot give such costs and remain able to provide for herself and her dependents." Mitchell v. Champs Sports, 42 F.Supp.2d 642, 648 (E.D. Tex. 1998) (citations omitted). "The question under 28 U.S.C. § 1915 is whether the litigant is 'unable to pay' the costs, and the answer has consistently depended in part on [the] litigant's actual ability to get funds from a spouse, a parent, an adult sibling, or other next friend." Williams v. Spencer, 455 F.Supp. 205, 209 (D.Md. 1978); see Fridman v. City of New York, 195 F.Supp.2d 534, 537 (S.D.N.Y. 2002) ("In assessing an application to proceed in forma pauperis, a court may consider the resources that the applicant has or 'can get' from those who ordinarily provide the applicant with the 'necessities of life,' such as 'from a spouse, parent, adult sibling or other next friend.' . . . If it appears that anapplicant's 'access to [] court has not been blocked by his financial condition; rather [that] he is "merely in the position of having to weigh the financial constraints imposed if he pursues [his position] against the merits of his case,"' then a court properly exercises its discretion to deny the application."). In Martinez, supra, the Eleventh Circuit determined that affidavit statements satisfying the requirement of poverty should be accepted by the trial court "absent a serious misrepresentation, and need not show that the litigant is 'absolutely destitute' to qualify for indigent status under § 1915." 364 F.3d at 1307 (citation omitted); see also id. ("Such an affidavit will be held sufficient if it represents that the litigant, because of his poverty, is unable to pay for the court fees and costs, and to support and provide necessities for himself and his dependents.").

Upon a review of the Plaintiff's IFP motion (Doc. 2), as amended on April 12, 2019 (Doc. 4), the undersigned RECOMMENDS that the Court exercise its broad discretion to DENY this motion due to Plaintiff's failure to provide this Court with critical requested information regarding how he provides for his basic living needs in light of his specific representation to this Court that he has absolutely no assets or income (see Doc. 4, at 3). In other words, Plaintiff has not explained how he lives in an apartment at 3345 Fish Avenue, Bronx, New York (id. at 1), see https://www.realtor.com/realestateandhomes-detail/3345-Fish-Ave (reflecting that the property is a multi-family home built in 1930 with an estimated value of $627,300) (last visited, April 29, 2019, at 2:07 p.m.), yet makes no monthly rental payment on that apartment (Doc. 4, at 3). Moreover, the motion does not make clear how a single male can live in such an apartment rent-free and also provide for his food, clothing, and other living necessities, much less pay the utilities on the apartment, when he has had no employment for more than six years, has no assets orproperty, yet also (curiously) no financial debts or obligations. (See id. at 1-3.) The only logical explanation for how Plaintiff provides for his basic living needs (that is, shelter, food, clothing, etc.) is that he lives with a family member (or members) or other next friend who provide for those basic needs. However, because Plaintiff has not provided this critical information, though it was requested of him (see id. at 3 ("If you have indicated that you have minimal or no assets or income, please explain how you provide for your basic living needs such as food, clothing, and shelter. (e.g. food stamps, family assistance or charitable contributions.)")), this Court has no ability to determine whether Plaintiff lives with a family member(s) or other next friend who is able to pay the filing fee and other related costs without being deprived of the basic necessities of life. See Martinez, supra, 364 F.3d at 1307; compare id. with, e.g., Williams, supra, 455 F.Supp. at 209 (under § 1915, the answer to whether a litigant is unable to pay depends "in part on [the] litigant's actual ability to get funds from a spouse, a parent, an adult sibling, or other next friend" (emphasis added)) and Fridman, supra, 195 F.Supp.2d...