Case No. 2:17-cv-1855-MBS-MGB.

Gregory L. Hampton, Plaintiff, v. Commissioner, Social Security Administration, Defendant.

United States District Court, D. South Carolina, Charleston Division.

Editors Note
Applicable Law: 42 U.S.C. § 405
Cause: 42 U.S.C. § 405 Review of HHS Decision (DIWC)
Nature of Suit: 863 Social Security: DIWC / DIWW
Source: PACER

Attorney(s) appearing for the Case

Gregory L Hampton, Plaintiff, represented by W. Daniel Mayes , Smith Massey Brodie Thumond Guynn and Mayes.


MARY GORDON BAKER, Magistrate Judge.

Plaintiff, through counsel, has filed for judicial review of the Commissioner's administrative decision denying disability benefits. Pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. Upon review, the Magistrate Judge recommends that the Plaintiff's motion to proceed in forma pauperis ("IFP") (DE# 3) be denied for the following reasons:

I. Relevant Law

The Fourth Circuit Court of Appeals has held, albeit in an unpublished decision, that an order denying leave to proceed IFP is the "functional equivalent" of a dismissal of the case, and thus, is outside the scope of a magistrate judge's authority. See Hunter v. Roventini, 617 F. App'x 225, 226 (4th Cir. June 3, 2015) (unpublished) (clarifying that a Magistrate Judge must issue a recommendation, rather than an order, for denial of a motion to proceed in forma pauperis). In light of such case law, and because the evidence of record in the present case indicates that the Plaintiff is able to pay the filing fee and is not entitled to proceed IFP, the undersigned Magistrate Judge is entering this Report and Recommendation, instead of an order.

II. Applications to Proceed IFP

A plaintiff may file a civil action in federal court without prepayment of the filing fee if he submits an affidavit containing a statement of his assets and shows that he cannot afford to pay the required filing fee. 28 U.S.C. § 1915(a)(1). The purpose of the IFP statute is to assure that indigent persons have equal access to the judicial system by allowing them to proceed without having to pay the filing fee. Flint v. Haynes, 651 F.2d 970, 973 (4th Cir.1981), cert. denied, 454 U.S. 1151 (1982). A plaintiff does not have to prove that he is "absolutely destitute to enjoy the benefit of the statute." Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948).

An affidavit to proceed IFP is sufficient if it states facts indicating that the plaintiff cannot afford to pay the filing fee. Adkins, 335 U.S. at 339. If a court determines at any time that the allegation of poverty in an IFP application is not true, then the court "shall dismiss the case." 28 U.S.C. § 1915(e)(2)(A); and see, e.g., Justice v. Granville County Board of Education, 2012 WL 1801949 (E.D.N.C. May 17, 2012) ("dismissal is mandatory if the court concludes that an applicant's allegation of poverty is untrue"), affirmed by, 479 F. App'x 451 (4th Cir. Oct. 1, 2012), cert. denied, 133 S.Ct. 1657 (2013).

III. Discussion

Plaintiff has submitted an Application to Proceed Without Prepaying Fees or Costs (Form AO 240), which the Magistrate Judge construes as a motion for leave to proceed IFP. (See DE# 3, filed July 13, 2017). See 28 U.S.C. § 1915. A review of the motion indicates that the Plaintiff is able to pay the filing fee in this case. For example, Plaintiff has substantial funds available, including $24,532.00 in his checking and/or savings account and $54,500.00 in an IRA. He indicates he also has monthly income of $955.00 from a pension. Plaintiff lists estimated expenses totaling $905.00 monthly, including car payment ($170.00), insurance ($95.00), rent ($600.00), and cell phone ($40.00). In light of his available funds and income, Plaintiff has not explained why he believes he is unable to pay the filing fee.

III. Conclusion

Accordingly, the Magistrate Judge recommends that: 1) the Plaintiff's motion to proceed IFP (DE# 3) should be denied; and 2) Plaintiff should be given thirty (30) days in which to pay the filing fee.


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.'" Diamond v. Colonial Life & Acc. Ins. Co., 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); see 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 Post Office Box 835 Charleston, South Carolina 29402

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); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).


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