Jamie McDowell McClary v. Wells Fargo and Darien Swenson

• Court: District Court, D. South Carolina
• Decided: May 7, 2026
• Docket: 6:26-cv-01809
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

Jamie McDowell McClary, ) C/A No.: 6:26-1809-JDA-SVH ) Plaintiff, ) ) vs. ) ) REPORT AND Wells Fargo and Darien Swenson, ) RECOMMENDATION ) Defendants. ) )

The sole issue in this Report and Recommendation is whether Jamie McDowell McClary (“Plaintiff”) should be required to pay the filing fee or whether Plaintiff’s financial condition justifies waiver of the payment. Plaintiff filed this employment discrimination action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e All pretrial proceedings in this matter were referred to the undersigned pursuant to Local Civ. Rule 73.02(B)(2)(e) (D.S.C.). For the reasons that follow, the undersigned recommends the court deny Plaintiff’s request for indigent status. I. Procedural Background Plaintiff filed an Application to Proceed in District Court without Prepaying Fees or Costs (Form AO-240). [ECF No. 3 Form AO-240] On the form, Plaintiff stated her gross pay was $3,800 per month and her net pay was $3,000. at 1. She indicated she had $4,000 in cash or a checking or savings account. at 2. She listed monthly expenses that included a mortgage, car, student loans, and credit cards, but did not indicate her monthly payments for

these expenses. Despite her representation that her monthly expenses included a mortgage payment, Plaintiff did not indicate she had any property or other assets. She listed three dependents, but did not identify her relationship to them.

II. Discussion Grants or denials of applications to proceed in forma pauperis are left to the discretion of federal district courts. , 626 F.2d 363, 364 (4th Cir. 1980). However, there is no clear precedent in the

Fourth Circuit concerning a magistrate judge’s authority to issue an order denying an application to proceed in forma pauperis.1 The Sixth Circuit has concluded that a magistrate judge cannot issue an order to deny an application to proceed in forma pauperis. , 894 F.2d 187 (6th Cir. 1990).

Specifically, the court ruled that a denial of an application to proceed in forma pauperis by a magistrate judge is the functional equivalent of an involuntary dismissal, which cannot be granted by a magistrate judge

1 The Fourth Circuit has held that, absent consent to the jurisdiction of the magistrate judge, proper review of a magistrate judge’s denial of a plaintiff’s motion to proceed in forma pauperis is in the district court. , 187 F.3d 629 (Table), 1999 WL 503537, *1 (4th Cir. July 16, 1999). However, the court did not specify the standard of review. pursuant to 28 U.S.C. § 636(b)(1)(A). . at 187. The Tenth and Fifth Circuits have reached similar conclusions. , 408 F.3d

1309, 1312 (10th Cir. 2005); , 373 F.3d 622, 623–25 (5th Cir. 2004). Therefore, the undersigned submits this Report and Recommendation to preserve Plaintiff’s opportunity to obtain a review by the district judge on objections.

A litigant is not required to show she is completely destitute in order to qualify as an indigent within the meaning of 28 U.S.C. § 1915(a). , 335 U.S. 331, 337–44 (1948). However, the “privilege to proceed without posting security for costs and fees is reserved to

the many truly impoverished litigants who . . . would remain without legal remedy if such privilege were not afforded to them.” , 461 F.2d 649, 651 (7th Cir. 1972). In , 452 F. Supp. 939 (S.D. Tex. 1976), the court enunciated three legal tests used

to determine whether a person should proceed under 28 U.S.C. § 1915: (1) Is the litigant barred from the federal courts by the reason of her “impecunity”? (2) Is her access to the courts blocked by the imposition of an undue hardship? (3) Is the litigant forced to contribute her last dollar, or render herself destitute, to prosecute her claim? at 943; , C/A No. 4:10- 2253-JFA-TER, 2010 WL 4226151, at *1 (D.S.C. Sept. 17, 2010);

, C/A No. 4:07-617-RBH, 2007 WL 1302659, at *3 (D.S.C. May 2, 2007). Upon review of the information before the court, and mindful of the tests set forth in , it does not appear that Plaintiff would be rendered destitute

by paying the filing fee of $405 (including a $55 administrative fee), nor is there any indication that requiring payment of the filing fee would impose an undue hardship or effectively block Plaintiff’s access to the courts. , 452 F. Supp. at 942 (holding plaintiff was not indigent because he had the right to

collect a judgment of $5,486.76); , 547 F. Supp. 129 (E.D. Pa. 1982) (finding $450.00 in savings sufficient to allow the plaintiff to pay the filing fee of $60.00 without foregoing basic human needs). Here, Plaintiff has net income of $3,000 per month and retains $4,000 in cash or a checking or

savings account. Thus, she has sufficient funds to pay the filing and administrative fees and is not indigent. III. Conclusion and Recommendation For the foregoing reasons, it is recommended that the district judge deny

Plaintiff’s Application to Proceed Without Prepayment of Fees and Affidavit [ECF No. 3]. If Plaintiff pays the filing and administrative fees within the time set for filing objections to this Report and Recommendation, the Clerk is directed to vacate this Report and Recommendation and return the file to the undersigned for further action. However, if Plaintiff fails to take such action, the Clerk shall forward this Report and Recommendation to the district judge for disposition. The undersigned recommends that if the district judge accepts. this recommendation, Plaintiff be permitted 14 days within which to submit the filing fee. IT IS SO RECOMMENDED. SP U: flattges” May 7, 2026 Shiva V. Hodges Columbia, South Carolina United States Magistrate Judge The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.’” , 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); , 474 U.S. 140 (1985); , 766 F.2d 841 (4th Cir. 1985); , 727 F.2d 91 (4th Cir. 1984).