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Ayling v. Crosson

United States District Court, N.D. Georgia, Atlanta Division

November 13, 2017

DON AYLING, Plaintiff,



         This matter has been submitted to the undersigned for consideration of Defendant Elliot Crosson's application to proceed in forma pauperis (“IFP”). [Doc. 1]. The Court GRANTS Defendant's IFP request and RECOMMENDS that this matter be REMANDED to the Magistrate Court of Clayton County due to lack of subject matter jurisdiction.

         I. Introduction

         On October 19, 2017, Plaintiff filed a dispossessory proceeding against Defendant regarding of the premises at 8851 Wesley Place, Jonesboro, Georgia, 30238 (“the Property”), in the Magistrate Court of Clayton County, alleging that Defendant had failed to pay rent and seeking possession of the Property, past due rent of $890, and rent accruing up to the date of the judgment at a rate of $10 per day. [Doc. 1-1 at 4].[1]Service of process was accomplished on October 28, 2017. [Id.]. Defendant removed the action to this Court on November 11, 2017, contending that this Court has federal-question jurisdiction to hear this dispute based upon due process clause of the United States Constitution's Fourteenth Amendment. [Id. at 2].

         II. IFP Application

         Defendant lists monthly income of $800, comprised of gross monthly pay of $800, no debts, one dependent, minor children, and negligible assets and savings. [Doc. 1 at 1-3]. Defendant lists debts owed to him of $5, 000. [Id. at 3]. Defendant lists monthly expenses of $900 in rent (as of 9/1/17), $200 in clothing, $500 in food, $300 in transportation, $54 in laundry and dry-cleaning, $200 in medical and dental expenses, $100 in entertainment, $200 in motor vehicle insurance, $45 in business expenses, and $290 in alimony payments, totaling $2, 789. [Id. at 4-5]. He explains that he cannot pay the filing fee because “business is slow.” [Id. at 5].

         Pursuant to 28 U.S.C. § 1915(a), the Court “may authorize the commencement . . . of any suit, action, or proceeding . . . without payment of fees and costs or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner[2] possesses that the person is unable to pay such fees or give security therefor.” Id. § 1915(a). The affidavit required by the statute must show an inability to prepay fees and costs without foregoing the basic necessities of life. Adkins v. E.I. duPont de Nemours & Co., 335 U.S. 331, 339 (1948); Zuan v. Dobbin, 628 F.2d 990, 992 (7th Cir. 1980). Section 1915 is intended to provide indigent litigants with meaningful access to courts. Adkins, 335 U.S. at 342-43; Neitzke v. Williams, 490 U.S. 319, 324 (1988); see also Attwood v. Singletary, 105 F.3d 610, 612 (11th Cir. 1997) (Section 1915 is designed to ensure “that indigent persons will have equal access to the judicial system.”).

         Thus, § 1915 authorizes suits without the prepayment of fees and costs for indigent litigants. Denton v. Hernandez, 504 U.S. 25, 27 (1992). It bears emphasizing that § 1915 creates no absolute right to proceed in civil actions without payment of costs. Instead, the statute conveys only a privilege to proceed to those litigants unable to pay costs without undue hardship. Startti v. United States, 415 F.2d 1115, 1116 (5th Cir. 1969).[3] Moreover, while the privilege of proceeding in forma pauperis does not require a litigant to demonstrate absolute destitution, it is also clear that “something more than mere statement and an affidavit that a man is ‘poor' should be required before a claimant is allowed to proceed in forma pauperis.” Levy v. Federated Dep't Stores, 607 F.Supp. 32, 35 (S.D. Fla. 1984); Evensky v. Wright, 45 F.R.D. 506, 507-08 (N.D. Miss. 1968).

         Assuming the facts asserted by Defendant in the IFP are true, Defendant's monthly expenses exceed monthly income. [Doc. 1 at 1-4]. The Court, however, suspects that the financial affidavit is not correct or incomplete in material respects. For example, Defendant reports rental expenses, [id. at 4], while simultaneously removing a state dispossessory and suit for back rent. As a result, the Court doubts that the current financial affidavit is an accurate report of Defendant's current financial condition.

         Be that as it may, the nature of the underlying state court action reflects that Defendant is in imminent threat of being evicted for a relatively small past-due balance, indicating that Defendant in fact cannot afford to pay the fees and costs associated with commencing this removal action in this Court.

         Accordingly, Defendant's IFP application, [Doc. 1], is GRANTED for purposes of this action only.

         III. Frivolity/Subject-Matter Jurisdiction Determination

         Having found that Defendant may proceeding IFP, the Court must now conduct a frivolity review. Under 28 U.S.C. § 1915(e)(2)(B), a “district court must dismiss an in forma pauperis complaint at any time if it determines that the action ‘is frivolous or malicious.' ” Jackson v. Farmers Ins. Group/Fire Ins. Exchange, 391 Fed.Appx. 854, 856 (11th Cir. Aug. 12, 2010) (quoting § 1915(e)(2)(B)(i)); Robert v. Garrett, No. 3:07-cv-625, 2007 WL 2320064, *1 (M.D. Ala. Aug. 10, 2007) (observing that court must “sua sponte dismiss [an indigent non-prisoner's] complaint or any portion thereof which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune”); see also 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). A claim is frivolous under § 1915(e)(2)(B)(i) “if it is ‘without arguable merit either in law or fact.' ” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)); see also Neitzke, 490 U.S. at 325 (holding that a complaint “is frivolous where it lacks an arguable basis either in law or in fact”). “A case is frivolous if the factual allegations are ‘clearly baseless, ' or if it is based on an ‘indisputably meritless' legal theory. Jackson, 391 Fed.Appx. at 856 (quoting Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993)) (quotation marks omitted in original). Additionally, § 1915 “accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349 (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989).

         A complaint is deemed “frivolous” under § 1915 where there is no subject matter jurisdiction. Davis v. Ryan Oaks Apartment, 357 Fed.Appx. 237, 238-39 (11th Cir. Dec. 17, 2009); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (“[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety.” (citation omitted)); Pratt v. Sumner, 807 F.2d 817, 819 (9th Cir. 1987) (recognizing the ...

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