Whitehead v. Williams

• Decision Date: 05 September 2017
• Docket Number: CIVIL ACTION FILE NO. 1:17-cv-03305-TWT-AJB
• Parties: RON WHITEHEAD, Plaintiff, v. KAYMAR WILLIAMS and all others, Defendants.
• Court: U.S. District Court — Northern District of Georgia

RON WHITEHEAD, Plaintiff, v. KAYMAR WILLIAMS and all others, Defendants.

CIVIL ACTION FILE NO. 1:17-cv-03305-TWT-AJB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

September 5, 2017

UNITED STATES MAGISTRATE JUDGE'S ORDER AND FINAL REPORT AND RECOMMENDATION

This matter has been submitted to the undersigned for consideration of Defendant's application to proceed in forma pauperis ("IFP"), filed along with his notice of removal of a state court dispossessory proceeding from the Magistrate Court of Clayton County. [Doc. 1]. The Court GRANTS the application and RECOMMENDS that this matter be REMANDED to the Magistrate Court of Clayton County.

I. Introduction

On November 10, 2016, Plaintiff Ron Whitehead filed a dispossessory proceeding against Defendant Kaymar Williams and all others in the Magistrate Court of Clayton County, seeking possession of the premises at 637 Belle Grove Drive, Jonesboro, Georgia 30238 ("the Property"). [Doc. 1-1 at 5].¹ Service of process was accomplished by the sheriff on November 21, 2016. [Id.]. Defendant removed the action to this Court on August 31, 2017, contending that this Court has federal-question jurisdiction to hear this dispute. [Doc. 1-1 at 2].

II. IFP Application

In the IFP application, Defendant attests that to having no income, assets, debts, dependents, employment, or money in any bank accounts. [Doc. 1 at 2-3]. Defendant listed monthly expenses of $1,200 in rent, $400 in utilities, $100 in home maintenance, $100 in food, $100 in medical/dental expenses, and $100 in transportation, totaling $2,000. [Id. at 5]. However, as this case arose from a dispossessory action, it is unclear if Defendant is actually spending $1,200 on monthly rent. [See Doc. 1-1 at 5].

Pursuant to 28 U.S.C. § 1915(a), the Court "may authorize the commencement . . . of any suit, action, or proceeding . . . without payment of fees and costs or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner[²] possesses that the person is unable to pay suchfees or give security therefor." Id. § 1915(a). This section is intended to provide indigent litigants with meaningful access to courts. Adkins v. E.I. duPont de Nemours & Co., 335 U.S. 331, 342-43 (1948); Neitzke v. Williams, 490 U.S. 319, 324 (1988); see also Attwood v. Singletary, 105 F.3d 610, 612 (11^th Cir. 1997) (Section 1915 is designed to ensure "that indigent persons will have equal access to the judicial system.").

Thus, § 1915 authorizes suits without the prepayment of fees and costs for indigent litigants. Denton v. Hernandez, 504 U.S. 25, 27 (1992). It bears emphasizing that § 1915 creates no absolute right to proceed in civil actions without payment of costs. Instead, the statute conveys only a privilege to proceed to those litigants unable to pay costs without undue hardship. Startti v. United States, 415 F.2d 1115, 1116 (5^th Cir. 1969).³ Moreover, while the privilege of proceeding in forma pauperis does not require a litigant to demonstrate absolute destitution, it is also clear that "something more than mere statement and an affidavit that a man is 'poor' should be required before a claimant is allowed to proceed in forma pauperis." Levy v. Federated Dep'tStores, 607 F. Supp. 32, 35 (S.D. Fla. 1984); Evensky v. Wright, 45 F.R.D. 506, 507-08 (N.D. Miss. 1968). The affidavit required by the statute must show an inability to prepay fees and costs without foregoing the basic necessities of life. Adkins, 335 U.S. at 339; Zuan v. Dobbin, 628 F.2d 990, 992 (7^th Cir. 1980).

As it presently reads, Defendant's financial affidavit supports a finding of indigency sufficient to excuse the prepayment of the fees and costs of filing this lawsuit due to Defendant having no monthly income. [Doc. 1 at 1-2]. The Court, however, suspects that the financial affidavit is not correct or incomplete in material respects. For example, Defendant reports rental expenses, [id. at 4], while simultaneously removing a state dispossessory case to this Court. As a result, the Court doubts that the current financial affidavit is an accurate report of Defendant's current financial condition.

Be that as it may, the nature of the underlying state court action reflects that Defendant is in imminent threat of being evicted for a relatively small past-due balance, indicating that Defendant in fact cannot afford to pay the fees and costs associated with commencing this removal action in this Court.

Accordingly, Defendant's IFP application, [Doc. 1], is GRANTED for purposes of this action only.

III. Frivolity Determination

Having found that Defendant is entitled to proceed IFP, the Court must conduct a frivolity review. Under 28 U.S.C. § 1915(e)(2)(B), a "district court must dismiss an in forma pauperis complaint at any time if it determines that the action 'is frivolous or malicious.' " Jackson v. Farmers Ins. Group/Fire Ins. Exchange, 391 Fed. Appx. 854, 856 (11^th Cir. Aug. 12, 2010) (quoting § 1915(e)(2)(B)(i)); Robert v. Garrett, No. 3:07-cv-625, 2007 WL 2320064, *1 (M.D. Ala. Aug. 10, 2007) (observing that court must "sua sponte dismiss [an indigent non-prisoner's] complaint or any portion thereof which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune"); see also 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). A claim is frivolous under § 1915(e)(2)(B)(i) "if it is 'without arguable merit either in law or fact.' " Napier v. Preslicka, 314 F.3d 528, 531 (11^th Cir. 2002) (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11^th Cir. 2001)); see also Neitzke, 490 U.S. at 325 (holding that a complaint "is frivolous where it lacks an arguable basis either in law or in fact"). "A case is frivolous if the factual allegations are 'clearly baseless,' or if it is based on an 'indisputably meritless' legal theory. Jackson, 391 Fed. Appx. at 856 (quoting Carroll v. Gross, 984 F.2d 392, 393 (11^th Cir. 1993)) (quotation marks omitted in original). Additionally, § 1915 "accords judges not only the authority to dismiss a claim based on anindisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Bilal, 251 F.3d at 1349 (quoting Neitzke, 490 U.S. at 327).

A complaint is deemed "frivolous" under § 1915 where there is no subject matter jurisdiction. Davis v. Ryan Oaks Apartment, 357 Fed. Appx. 237, 238-39 (11^th Cir. Dec. 17, 2009); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) ("[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety." (citation omitted)); Pratt v. Sumner, 807 F.2d 817, 819 (9^th Cir. 1987) (recognizing the general proposition that a complaint should be dismissed as frivolous under § 1915 where subject matter jurisdiction is lacking). Independent of the Court's duty under § 1915(e) to evaluate the claim of a party proceeding IFP, the Court also has an obligation to insure that subject matter jurisdiction exists. " 'Subject matter jurisdiction . . . refers to a tribunal's power to hear a case.' " Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 891 (11^th Cir. 2013) (quoting Morrison v. Nat'l Australia Bank, Ltd., 561 U.S. 247, 254 (2010)). "As the Federal Rules of Civil Procedure state, 'If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.' " Williams v. Warden, Federal Bureau of Prisons, 713 F.3d 1332, 1337-38 (11^th Cir. 2013) (quotingFed. R. Civ. P. 12(h)(3)); accord Gonzalez v. Thaler, 586 U.S. 134, 141 (2012) ("When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented."); id. ("Subject-matter jurisdiction can never be waived or forfeited."); see also Cadet v. Bulger, 377 F.3d 1173, 1179 (11^th Cir. 2004) ("Federal courts are obligated to inquire into subject-matter jurisdiction sua sponte whenever it may be lacking.") (quotation marks omitted).

The Court must liberally construe pro se pleadings, holding them to a less stringent standard than pleadings drafted by attorneys. Hughes v. Lott, 350 F.3d 1157, 1160 (11^th Cir. 2003) (citation omitted). However, the leniency afforded pro se litigants does not give the courts license to serve as de facto counsel or permit them to rewrite an otherwise deficient pleading in order to sustain an action. Hudson v. Middle Flint Behavioral Healthcare, 522 Fed. Appx. 594, 596 (11^th Cir. June 20, 2013) (citing GJR Inv., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11^th Cir. 1998)).

A defendant may remove a case from state court to federal court if the federal court has original jurisdiction over the case. 28 U.S.C. § 1441(a). A district court lacks subject-matter jurisdiction over a removal action when it does not have "original jurisdiction over the plaintiff's claims." Univ. of S. Ala. v. Am. Tobacco Co.,168 F.3d 405, 410 (11^th Cir. 1999) (emphasis added). Said another way, removal is proper if the plaintiff's case originally could have been filed in federal court. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). While a defendant is entitled to remove to the appropriate federal district court any civil action over which district courts have original jurisdiction, see 28 U.S.C. §§ 1331 and 1441(a), a plaintiff "is the master of the complaint, free to avoid federal jurisdiction by pleading only state claims even where a federal claim is also available." Hill v. BellSouth Telecomms., Inc., 364 F.3d 1308, 1314 (11^th Cir. 2004) (citation omitted).

Original jurisdiction under § 1441 arises if there is diversity of citizenship or the complaint presents a federal question. See 28 U.S.C. § 1441(b); Geddes v. Am. Airlines, Inc., 321 F.3d 1349, 1352 n.2 (11^th Cir. 2003); Blab T.V. of Mobile, Inc. v. Comcast Cable Commc'ns, Inc., 182 F.3d...