White v. Pilot Catastrophe Services, Inc.

• Court: District Court, S.D. Alabama
• Decided: May 29, 2025
• Docket: 1:25-cv-00225
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION LUANN WHITE, ) Plaintiff, ) ) v. ) CIVIL ACTION NO. 1:25-00225-KD-N ) PILOT CATASTROPHE ) SERVICES, INC., ) Defendant. ) ORDER The Plaintiff, LUANN WHITE, who is proceeding without counsel (pro se), commenced this civil action by filing a complaint with the Court on May 28, 2025. See (Doc. 1); Fed. R. Civ. P. 3. Contemporaneously, White filed a motion for leave to proceed without prepayment of fees and costs, or in forma pauperis (“IFP”), under 28 U.S.C. § 1915 (Doc. 2). The assigned District Judge has referred the IFP motion to the undersigned Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)- (b), Federal Rule of Civil Procedure 72, and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b); (05/28/2025 electronic reference). Authority for granting a plaintiff permission to proceed without prepayment of fees and costs is found at 28 U.S.C. § 1915, which provides as follows: [Subject to inapplicable exceptions], any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that the person is entitled to redress. 28 U.S.C. § 1915(a)(1).1 “The in forma pauperis statute, 28 U.S.C. § 1915, ensures that indigent persons will have equal access to the judicial system.” Attwood v. Singletary, 105 F.3d 610, 612-613 (11th Cir. 1997) (citing Coppedge v. United States,

369 U.S. 438, 446 (1962)). However, “[t]here is no question that proceeding in forma pauperis is a privilege, not a right,” Camp v. Oliver, 798 F.2d 434, 437 (11th Cir. 1986),2 and “should not be a broad highway into the federal courts.” Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984) (per curiam). Nevertheless, “while a trial court has broad discretion in denying an application to proceed in forma pauperis under 28 U.S.C.A. § 1915, it must not act arbitrarily and it may not deny the application on erroneous grounds.” Pace v. Evans, 709 F.2d 1428, 1429 (11th Cir.

1983) (per curiam) (citing Flowers v. Turbine Support Div., 507 F.2d 1242, 1244 (5th Cir. 1975)); see also Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306-07 (11th Cir. 2004) (per curiam) (“[A] trial court has wide discretion in denying an application to proceed IFP under 28 U.S.C. § 1915…However, in denying such applications a court must not act arbitrarily. Nor may it deny the application on erroneous grounds.” (quotation omitted)).

1 “Despite the statute's use of the phrase ‘prisoner possesses,’ the affidavit requirement applies to all persons requesting leave to proceed IFP.” Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 n.1 (11th Cir. 2004) (per curiam).

2 Accord Rivera v. Allin, 144 F.3d 719, 722, 724 (11th Cir. 1998) (“Leave to proceed IFP is, and always has been, the exception rather than the rule. To commence a civil lawsuit in federal district court, the general rule is that initiating parties must prepay a filing fee … To be sure, proceeding IFP in a civil case is a privilege, not a right— fundamental or otherwise.”), abrogated on other grounds, Jones v. Bock, 549 U.S. 199 (2007). When considering a motion filed pursuant to § 1915(a), “[t]he only determination to be made by the court ... is whether the statements in the affidavit satisfy the requirement of poverty.” Watson v. Ault, 525 F.2d 886, 891 ([5]th Cir. 1976). An affidavit addressing the statutory language should be accepted by the court, absent a serious misrepresentation, and need not show that the litigant is “absolutely destitute” to qualify for indigent status under § 1915. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 338– 40, 69 S. Ct. 85, 88–89, 93 L. Ed. 43 (1948). Such an affidavit will be held sufficient if it represents that the litigant, because of his poverty, is unable to pay for the court fees and costs, and to support and provide necessities for himself and his dependents. Id. at 339, 69 S. Ct. at 89. In other words, the statute is not to be construed such that potential litigants are forced to become public charges or abandon their claims because of the filing fee requirements. Id. at 339–40, 69 S. Ct. at 89…The district court must provide a sufficient explanation for its determination on IFP status to allow for meaningful appellate review. O'Neal v. United States, 411 F.2d 131, 138 (5th Cir. 1969); Phipps v. King, 866 F.2d 824, 825 (6th Cir. 1988); Besecker v. State of Ill., 14 F.3d 309, 310 (7th Cir. 1994) (per curiam). Martinez, 364 F.3d at 1307 (footnotes omitted “A court may not deny an IFP motion without first comparing the applicant's assets and liabilities in order to determine whether he has satisfied the poverty requirement.” Thomas v. Chattahoochee Judicial Circuit, 574 F. App’x 916, 917 (11th Cir. 2014) (per curiam) (unpublished) (citing Martinez, 364 F.3d at 1307-08). “The question under 28 U.S.C. § 1915 is whether the litigant is ‘unable to pay’ the costs, and the answer has consistently depended in part on [the] litigant’s actual ability to get funds from a spouse, a parent, an adult sibling, or other next friend.” Williams v. Spencer, 455 F. Supp. 205, 209 (D. Md. 1978); see Fridman v. City of New York, 195 F. Supp. 2d 534, 537 (S.D.N.Y. 2002) (“In assessing an application to proceed in forma pauperis, a court may consider the resources that the applicant has or can get from those who ordinarily provide the applicant with the necessities of life, such as from a spouse, parent, adult sibling or other next friend. … If it appears that an applicant’s access to court has not been blocked by his financial condition; rather that he is merely in the position of having to weigh the financial constraints imposed if he

pursues his position against the merits of his case, then a court properly exercises its discretion to deny the application.” (cleaned up)); Sellers v. United States, 881 F.2d 1061, 1063 (11th Cir. 1989) (per curiam) (funds “derived from family sources” are relevant to IFP determination); Wilson v. Sargent, 313 F.3d 1315, 1319-20 (11th Cir. 2002) (per curiam) (same).3 “Federal Courts have frequently recognized that, for purposes of determining IFP eligibility, it is appropriate to consider any support that an IFP applicant might receive from a spouse, or from any other individual.” Ginters

v. Frazier, 2008 WL 314701, at *2 n.1 (D. Minn. Feb. 4, 2008); accord Fridman, 195 F. Supp. 2d at 537; Williams, 455 F. Supp. at 208-09; Akkaraju v. Ashcroft, 2003 WL 22232969, at *1 (N.D. Ill. Sept. 26, 2003) (“In evaluating the funds available to in forma pauperis movants, courts may consider the income or resources of interested persons, such as spouses and parents.” (citation omitted)).

3 Most cases considering the ability of someone else to pay these costs for a putative pauper focus on whether those costs can be borne by a close family member—such as a spouse, parent, an adult sibling, or other next friend. E.g., Williams, 455 F. Supp. at 209; see also Pisano v. Astrue, 2012 WL 79188, at *2 (D. Mass. Jan. 10, 2012) (“A number of courts have come to the same conclusion that the income and resources of a spouse, if not other close family members as well, are relevant to the determination of indigency under 28 U.S.C. § 1915.”) (collecting cases); but see Fridman, 195 F. Supp. 2d at 537 (“a court may consider the resources that the applicant has or ‘can get’ from those who ordinarily provide the applicant with the ‘necessities of life,’ such as ‘from a spouse, parent, adult sibling or other next friend.’”). Upon due consideration of the representations in White’s IFP motion (Doc. 2), which is in substantial compliance with 28 U.S.C. § 1746 and thus constitutes an unsworn declaration made under penalty of perjury, the undersigned finds that her

motion fails to demonstrate that she is “unable to pay for the court fees and costs, and to support and provide necessities for [her]self” because of her poverty. Martinez, 364 F.3d at 1307. White is currently unemployed, has monthly mortgage payments of $2,200, and carries $9,953 in financial debt. However, she reports substantial assets. White reports home equity in excess of $280,000;4 a fully owned 2019 BMW valued at $20,000; $1,938 on hand in cash and savings; and receives $318 a month in Supplemental Nutrition Assistance Program benefits.5 White is married with zero

dependents. Her spouse generates an income of $1,400 weekly. Based on this information, requiring White to pay the $405 filing fee for this action will not cause her undue hardship.6 Accordingly, White is ORDERED to pay the $405 filing fee for this civil action to the Clerk of Court no later than June 18, 2025. Failure to do so will result in entry

4 White reports an estimated home value of $390,000 with an amount owed of $102,000. 5 Listed colloquially as “food stamps.” See (Doc. 2, PageID.12). 6 Under 28 U.S.C. § 1914, “[t]he clerk of each district court shall require the parties instituting any civil action, suit or proceeding in such court … to pay a filing fee of $350,” along with “such additional fees only as are prescribed by the Judicial Conference of the United States.” 28 U.S.C. § 1914(a)-(b). Effective December 1, 2023, the Judicial Conference prescribes an additional $55 for “for filing a civil action, suit, or proceeding in a district court[.]” See https://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee- schedule (last visited May 29, 2025). of a recommendation to the Court that White be denied leave to proceed IFP in this action, and that this action be dismissed without prejudice sua sponte unless White pays the filing fee within the time period for objections to the recommendation. See

Woods v. Dahlberg, 894 F.2d 187, 187 (6th Cir. 1990) (per curiam) (denial of IFP motion is “the functional equivalent of an involuntary dismissal”); Escobedo v. Applebees, 787 F.3d 1226, 1228 (9th Cir. 2015) (“Obviously, if an IFP application is submitted with the complaint in lieu of the filing fee, and the application is thereafter denied, the district court will be free to dismiss the complaint if the fee is not paid within a reasonable time following the denial.”). White is advised that “[a]ll persons proceeding pro se shall be bound by, and

must comply with, all Local Rules of this Court, as well as the Federal Rules of Civil … Procedure, unless excused by Court order.” S.D. Ala. GenLR 83.5(a).7 Federal Rule of Civil Procedure 11(a) requires that any paper filed with the Court be signed by a pro se party personally and provide that party’s “address, e-mail address, and telephone number.”8 See also S.D. Ala. GenLR 5(a)(4) (“For filings by pro se litigants, the unrepresented party shall personally sign each document filed and shall include,

directly beneath the signature line, his or her name, address and telephone number.”). Under this Court’s local rules, “[a]ny person proceeding pro se must, at all

7 The Court’s Local Rules and Standing Orders may be read on the Court’s website at: https://www.alsd.uscourts.gov/rules-and-orders

8 “The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention.” Fed. R. Civ. P. 11(a). times during the pendency of the action to which he or she is a party, keep the Clerk informed of his or her current address and … must promptly notify the Clerk of any change of address … Failure to comply with this Rule may result in sanction,

including dismissal of a pro se plaintiff’s action…” S.D. Ala. GenLR 83.5(b). Additionally, any “request for Court action must be presented by motion and may not be presented by informal means such as a letter.” S.D. Ala. GenLR 7. White is encouraged to review the resources available on the Court’s website for those individual proceeding without an attorney (https://www.alsd.uscourts.gov/filing-without-attorney).

DONE and ORDERED this the 29th day of May 2025. /s/ Katherine P. Nelson KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE