United States District Court for the Southern District of Georgia, 2019

Pugh v. Heap

United States District Court for the Southern District of Georgia · Decided October 1, 2019

Trial Court Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION GERARD J. PUGH, ) ) Plaintiff, ) ) v. ) CV419-252 ) DISTRICT ATTORNEY MEG HEAP, ) ) Defendant. ) ORDER Plaintiff, appearing pro se, has submitted a 42 U.S.C. § 1983 Complaint alleging malicious or wrongful prosecution. Doc. 1. He seeks to proceed in forma pauperis (IFP). Doc. 2. The application is deficient.

As additional information is required, Plaintiff is DIRECTED to amend his application within 14 days.

In his application, Plaintiff claims to earn $1,100 in wages biweekly. Doc. 2 at 1. However, he has not addressed whether he holds other assets, such as savings, real estate, or automobiles. Plaintiff has also identified several debts. Doc. 2 at 2. He has not specified the amount of these debts or their respective monthly payments. He has provided no information regarding other monthly expenses, such as food, shelter, and transportation. Wary of indigency claims where information appears to have been omitted, and cognizant of how easily one may consume a public resource with no financial skin in the game,1 this Court demands supplemental information from dubious IFP movants. See, e.g., Kareem v. Home Source Rental, 986 F. Supp. 2d 1345 (S.D. Ga. 2013); Robbins v. Universal Music Grp., 2013 WL 1146865 at *1 (S.D. Ga. Mar.19, 2013).2 Plaintiff’s application for IFP status omits material information.

He, therefore, must properly fill out his application to proceed IFP,

1 “[A] litigant whose filing fees and court costs are assumed by the public . . . lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.”

Neitzke v. Williams, 490 U.S. 319, 324 (1989). Courts thus deploy appropriate scrutiny.

See Hobby v. Beneficial Mortg. Co. of Va., 2005 WL 5409003 at *7 (E.D. Va. June 3, 2005) (debtor denied IFP status where, although she was unable to find employment as a substitute teacher, she had not shown she is unable to work and earn income in other ways); In re Fromal, 151 B.R. 733, 735 (E.D. Va. 1993) (denying IFP application where debtor was licensed attorney and accountant and she offered no reason why she cannot find employment), cited in In re Zow, 2013 WL 1405533 at *2 (Bkrtcy. S.D. Ga. Mar. 4, 2013) (denying IFP to “highly educated” bankruptcy debtor who, inter alia, had “not shown he is physically unable to work or earn income in other ways.”); Nixon v. United Parcel Service, 2013 WL 1364107 at *1-2 (M.D. Ga. Apr. 3, 2013) (court examined income and expenses on long-form IFP affidavit and determined that plaintiff in fact had the ability to pay the court’s filing fee); Swain v. Colorado Tech.

Univ., 2014 WL 3012730 at *1 n. 1 (S.D. Ga. May 14, 2014).

2 See also Lister v. Dep’t of Treasury, 408 F.3d 1309, 1313 (10th Cir. 2005) (court did not abuse its discretion by denying status to Social Security benefits claimant seeking judicial review of Commissioner's benefits denial; claimant, after having been specifically instructed on how to establish IFP status, failed to fill out proper forms or otherwise provide court with requisite financial information); Mullins v. Barnhart, 2010 WL 1643581 at *1 (D. Kan. Mar, 30, 2010) (denying, after scrutinizing IFP affidavit’s financial data, leave to proceed IFP on financial ability grounds). additionally, he must disclose3 the following information within 14 days from the date of this Order: (1) The identity of the source of the claimed $1,100 biweekly income; 3 A few important points must be underscored here: First, proceeding [IFP] in a civil case is a privilege or favor granted by the government. Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 198, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993). Second, the statute reads that the court “may authorize the commencement” of an action. 28 U.S.C. § 1915(a)(1). The grant, denial, or other decision concerning an [IFP] application requires the court to exercise discretion. Denton v. Hernandez, 504 U.S. 25, 31, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992); see also Lee v. McDonald's Corp., 231 F.3d 456, 458 (8th Cir. 2000) (explaining the purpose of 28 U.S.C. § 1915 and stating the decision of whether to grant or deny in [IFP] s status under 28 U.S.C. § 1915 is discretionary).

Lafontaine v. Tobin, 2013 WL 4048571 at *1 (N.D. Iowa Aug. 9, 2013) (emphasis added); see also Marceaux v. Democratic Party, 79 F. App’x 185, 186 (6th Cir. 2003) (no abuse of discretion when court determined plaintiff could afford to pay the filing fee without undue hardship because he has no room and board expenses, owns a car, and spends the $250.00 earned each month selling plasma on completely discretionary items).

Lafontaine also extended to non-prisoner IFP movants a pay-to-play, installment payment plan analogous to what Congress imposed upon prisoners under its Prison Litigation Reform Act (PLRA), which is expressed in statutory provisions like § 1915 (a)(1), (b)(1)(2). Lafontaine, 2013 WL 4048571 at *2; see also Kelner v. Harvin, 2010 WL 2817262 at *1 n. 5 (D. Kan. July 16, 2010) (It has been held that the exhaustion, full/initial partial payment, and three-strikes provisions of the current [IFP] statutes do not apply to [IFP] litigants who are not prisoners. Nevertheless, several courts including the Tenth Circuit have applied this subsection which does not refer to prisoners, to suits brought by non-prisoners.”). The Court is considering likewise here, since cost-free litigation too easily enables recreational, if not nuisance, litigation. That further necessitates more detailed financial data from the plaintiff. (2) Whether he has any liquid assets, such as money in cash or bank accounts; (3) Whether he has any non-liquid assets, such as real property, automobiles, or jewelry; (4) Any monthly expenses, such as rent, food, transportation, or utilities; (5) Whether he is financially responsible to support another person; and (6) The value of loans and their associated monthly payments.

Providing this information will better illuminate Plaintiff’s true financial condition. In that regard, he must again declare the facts he pleads to be true, and sign his name to that declaration—under penalty of perjury. If he does not use a preprinted IFP form to respond (hence, if he uses a blank sheet of paper), he must insert this above his signature: “I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).” 28 U.S.C. § 1746(1). The Clerk is DIRECTED to serve with this Order a blank IFP form for Plaintiff’s convenience. Failure to comply with this directive will result in a recommendation of dismissal on IFP-deficiency grounds alone. Kareem v. Home Source Rental, 2014 WL 24347 at *1 (S.D. Ga. Jan. 2, 2014).

The Court also notes that the events alleged in the Complaint occurred in 1996. As § 1983 does not provide a statute of limitations, the court looks to the forum state’s general personal injury statute. Owens v. Okure, 488 U.S. 235 (1989). In Georgia, such claims must be filed within two years. O.C.G.A. § 9-3-3383 (1982). Absent more recent allegations, or some explanation for why the claims arising out of the earlier events were not pursued at the time, plaintiffs Complaint might be subject to a recommendation of dismissal upon the screening required under 28 U.S.C. § 1915(e). If plaintiff wishes, he is free to submit an Amended Complaint with his supplemental IFP application. If he concedes that his claims are time-barred, he is also free to do nothing and his Complaint will be dismissed pursuant to Fed. R. Civ. P. 41.

SO ORDERED, this 1st day of October, 2019.

Chey Ler 4 [lex CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA

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