Robinson v. United States

• Court: District Court, S.D. Georgia
• Decided: December 3, 2020
• Docket: 6:20-cv-00027
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION KAREEN LOMAX ROBINSON, ) Plaintiff, v. 5 CV620-027 UNITED STATES OF AMERICA, Defendant. REPORT AND RECOMMENDATION Plaintiff, a prisoner at the Ashland Federal Correctional Institution filed this case removing a civil suit from the Bulloch County, Georgia. Doc. 1. The Court initially granted him leave to proceed in forma pauperis (““IFP”) and directed him to return certain forms. After receipt and review of those forms it appears that plaintiff misrepresented his financial status and is not indigent. Plaintiff initially asserted he had no funds, doc. 5, but it appears that he has substantial assets in his prison trust account, see doc. 12 at 2 (indicating over $900 in his prisoner trust account statement). Accordingly, the Court VACATES its prior order granting leave to proceed IFP, doc. 9, and RECOMMENDS that leave to proceed IFP denied and plaintiffs complaint be DISMISSED.

While a plaintiff need not be absolutely destitute in order to proceed IFP, Adkins v. E.I. Dupont de Nemours, 335 U.S. 331, 339

(1948), the fact that financing his own litigation may cause some difficulty is not sufficient to relieve a plaintiff of his obligation to pay his

own way where it is possible to do so without undue hardship. Thomas v. Secretary of Dep’t of Veterans Affairs, 358 F. App’x 115, 116 (11th Cir. 2009) (the Court has wide discretion in ruling on IFP application, and

should grant the privilege “sparingly” in civil cases for damages). Two important points must be underscored. First, proceeding IFP is a privilege, not an entitlement. See Rowland v. Cal. Men's Colony, Unit

II Men's Advisory Council, 506 U.S. 194, 198 (1993). And second, courts have discretion to afford litigants IFP status; it’s not automatic. 28 U.S.C. § 1915(a)(1) (courts “may authorize the commencement” of IFP

actions); Denton v. Hernandez, 504 U.S. 25, 31 (1992); 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); Lee v. McDonald's Corp., 231 F.3d 456, 458 (8th Cir. 2000) (the decision of whether to grant or deny IFP status under 28 U.S.C. § 1915 is discretionary).

Given his newly revealed assets, along with the fact that he claims no expenses, plaintiff is not indigent and his case should be DISMISSED.

28 U.S.C. §1915(e)(2)(A). This Report and Recommendation (R&R) is submitted to the district judge assigned to this action, pursuant to 28 U.S.C.

§ 636(b)(1)(B) and this Court’s Local Rule 72.3. Within 14 days of service, any party may file written objections to this R&R with the Court and serve a copy on all parties. The document should be

captioned “Objections to Magistrate Judge’s Report and Recommendations.” Any request for additional time to file objections should be filed with the Clerk for consideration by the assigned district

judge. After the objections period has ended, the Clerk shall submit this R&R together with any objections to the assigned district judge. The

district judge will review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to timely file objections will result in the waiver of rights on appeal. 11th Cir. R. 3-1; see Symonette v. V.A. Leasing Corp., 648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. United States, 612 F. App’x 542, 545 (11th Cir. 2015). SO REPORTED AND RECOMMENDED, this 3rd day of December, 2020.

Lc L.RAY UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA