REPORT AND RECOMMENDATION
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
The Fourth Circuit Court of Appeals has held, albeit in an unpublished decision, that an order denying leave to proceed IFP is the "functional equivalent" of a dismissal of the case, and thus, is outside the scope of a magistrate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 See Hunter v. Roventini, 617 F. App'x 225, 226 (4th Cir. June 3, 2015) (unpublished) (clarifying that a Magistrate Judge must issue a recommendation, rather than an order, for denial of a motion to proceed in forma pauperis).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.
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).
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.
Accordingly, the Magistrate Judge recommends that: 1) the Plaintiff's motion to proceed IFP (DE# 3) should be
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.
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: