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Davenport v. Walmart Stores, Inc.

United States District Court, D. Kansas

March 17, 2014

ALESHEA DAVENPORT, Plaintiff,
v.
WALMART STORES, INC., Defendant.

REPORT AND RECOMMENDATION

JAMES P. O'HARA, Magistrate Judge.

The pro se plaintiff, Alashea Davenport, has moved to proceed with this action in forma pauperis (ECF doc. 3), asking for relief from the fee to file her employment discrimination complaint against defendant Walmart Stores, Inc. Section 1915 of Title 28 of the United States Code allows the court to authorize the commencement of a civil action "without prepayment of fees or security therefor, by a person who submits an affidavit that... the person is unable to pay such fees or give security therefor." To succeed on a motion to proceed in forma pauperis, the movant must show a financial inability to pay the required filing fees.[1] "Proceeding in forma pauperis in a civil case is a privilege, not a right - fundamental or otherwise.'"[2] The decision to grant or deny in forma pauperis status under section 1915 lies within the "wide discretion" of the trial court.[3]

Plaintiff's affidavit provides minimal information about her financial status. It states that plaintiff is unemployed, owns real property, and owns two automobiles worth a net present value of $25, 000. Plaintiff also indicates that she has received gifts or inheritances in the last twelve months as well as at least $1, 150 in social security benefits. However, it is not clear whether the $1, 150 in social security benefits is per month or for the year in total. Plaintiff also does not indicate what amount in gifts or inheritances she has received in the last year. Despite claiming to have $0 cash on hand or money in a checking or savings account, plaintiff lists absolutely no monthly expenses, debts, or any other financial obligations. This alone, without more, is insufficient to show defendant is financially unable to pay the required filing fees. The court is unable, based upon the information provided, to adequately assess plaintiff's financial circumstances in order to make a determination of her suitability for in forma pauperis status. The court, therefore, finds that the affidavit is insufficient to support plaintiff's application, and, as a result, will deny her application for in forma pauperis status without prejudice.

Because this denial will be without prejudice, plaintiff shall have leave of court to file a new application for in forma pauperis status including a completed affidavit supplying the information missing or incomplete, as well as any other information that might be pertinent to the court's determination of whether to allow plaintiff to proceed in forma pauperis in this case. Plaintiff should make every effort to read each section of the application carefully, and to answer each applicable question contained in the form affidavit in as complete a manner as possible.

Accordingly, pursuant to Lister v. Dept. of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005), [4] the undersigned U.S. magistrate judge hereby issues this report and recommendation to the presiding U.S. District Judge, Julie A. Robinson, that plaintiff's motion to proceed in forma pauperis be denied without prejudice and plaintiff be granted leave to file a new application for in forma pauperis status, supported by a completed financial affidavit as supplied by this court.

Plaintiff is hereby informed that, within 14 days after she is served with a copy of this report and recommendation, she may, pursuant to 28 U.S.C. ยง 636(b)(1) and Fed.R.Civ.P. 72, file written objections to the report and recommendation. Plaintiff must file any objections within the 14-day period allowed if she wants to have appellate review of the proposed findings of fact, conclusions of law, or the recommended disposition. If plaintiff does not timely file her objections, no court will allow appellate review.

IT IS SO ORDERED.


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