United States District Court, D. Rhode Island
WILLIAM E. SMITH, CHIEF JUDGE
Report and Recommendation (“R&R”) (ECF No.
5), Magistrate Judge Patricia A. Sullivan recommended that
the Court deny Plaintiff's Application to Proceed without
Prepayment of Fees and Affidavit (“Application”)
(ECF No. 2) and direct Plaintiff to pay the filing fee within
thirty days of adopting the R&R. Having reviewed the
R&R and the relevant papers, and hearing no objection,
the Court ACCEPTS the R&R and adopts its recommendations
and reasoning. Plaintiff's Application, therefore, is
DENIED. Plaintiff is directed to pay the filing fee within
thirty days from entry of this Order; otherwise,
Plaintiff's case will be dismissed without prejudice.
PATRICIA A. SULLIVAN, United States Magistrate Judge.
matter is before the Court on the motion of Plaintiff James
Merida to proceed in forma pauperis
(“IFP”) (ECF No. 2). The motion was referred to
me. After review of the original motion, I directed Plaintiff
to supplement his financial affidavit with additional
information to support his claim of financial desperation by
November 10, 2017, making clear that if the information he
provided failed to establish that he is eligible for IFP
status, I would recommend that the IFP motion be denied. ECF
No. 3. After Plaintiff made a good faith effort to comply,
this deadline was extended to November 27, 2017.
complied with this Order by filing supplemental information;
his supplementation establishes that his family income is
just sufficient to cover estimated monthly expenses,
including making payments on debts and caring for children
and pets, as well as that some, but far from all, of the
family savings is bespoke. ECF No. 4. Most importantly, the
completed application establishes that Plaintiff is able to
discharge his responsibilities, leaving himself and his
family with $8, 000 in savings which could be used for this
litigation. Accordingly, based on my review of the
supplemental information, together with his original motion,
I reluctantly conclude that the motion should be denied and
address it by this report and recommendation. Janneh v.
Johnson & Wales Univ., No. CA 11-352 ML, 2011 WL
4597510, at *1 (D.R.I. Sept. 12, 2011) (denial of a motion to
proceed in forma pauperis is functional equivalent
of involuntary dismissal; magistrate judge should issue
report and recommendation for final decision by district
1915 permits persons otherwise unable to access the courts to
proceed without paying such costs as the fees for filing and
service, which instead are defrayed at public expense. 28
U.S.C. § 1915(a). As Justice Hugo Black, speaking for a
unanimous Supreme Court many years ago, made clear:
We cannot agree with the court below that one must be
absolutely destitute to enjoy the benefit of the statute . .
. . To say that no persons are entitled to the statute's
benefits until they have sworn to contribute to payment of
costs, the last dollar they have or can get, and thus make
themselves and their dependents wholly destitute, would be to
construe the statute in a way that would throw its
beneficiaries into the category of public charges. The public
would not be profited if relieved of paying costs of a
particular litigation only to have imposed on it the expense
of supporting the person thereby made an object of public
support. Nor does the result seem more desirable if the
effect of this statutory interpretation is to force a
litigant to abandon what may be a meritorious claim in order
to spare himself complete destitution.
Adkins v. E. I. DuPont de Nemours & Co., 335
U.S. 331, 339-40 (1948). Nevertheless, the First Circuit has
bluntly emphasized that even a plaintiff of small means
should be asked to “‘put his money where his
mouth is, ' it being all too easy to file suits, even
with sufficient pro forma allegations, if it costs nothing
whatever to do so.” In re Stump, 449 F.2d
1297, 1298 (1st Cir. 1971) (per curiam). Thus, in evaluating
the merits of an IFP motion, this Court must “hold the
balance steady and true as between fairness to the putatively
indigent suitor and fairness to the society which ultimately
foots the bill.” Temple v. Ellerthorpe, 586
F.Supp. 848, 850 (D.R.I. 1984) (Selya, J.).
IFP affidavit, read together with the supporting addendum and
supplementation, presents an applicant who appears to be a
hard-working individual properly discharging responsibilities
to family, including children. While the Court must
acknowledge that paying $400 for the filing fee is a
significant expenditure for him, nevertheless, he is not an
applicant whose poverty is such as to outweigh the
“fairness to the society which ultimately foots the
bill, ” as is necessary for eligibility to proceed IFP.
Recognizing that Plaintiff and his wife have doubtless
labored hard to create their nest egg, the Court is
constrained to find that available savings of $8000 are more
than sufficient to pay the $400 federal filing fee and for
service of the complaint without causing him or his family to
become the “object of public support.”
Adkins, 335 U.S. at 339-40. Based on that fact
alone, I find that Plaintiff does not qualify for IFP status.
I recommend that Plaintiff's Application to Proceed
without Prepayment of Fees and Affidavit (ECF No. 2) be
DENIED and that he be directed to pay the filing fee within
thirty days of the adoption of this report and
recommendation. If he does not pay the filing fee during that
time period, I recommend that the case be dismissed without
objection to this report and recommendation must be specific
and must be served and filed with the Clerk of the Court
within fourteen (14) days after its service on the objecting
party. See Fed.R.Civ.P. 72(b)(2); DRI LR Cv 72(d).
Failure to file specific objections in a timely manner
constitutes waiver of the right to review by the district
judge and the right to appeal the Court's decision.
See United States v. Lugo ...