United States District Court, N.D. Georgia, Atlanta Division
UNITED STATES MAGISTRATE JUDGE'S ORDER AND FINAL
REPORT AND RECOMMENDATION
J. BAVERMAN UNITED STATES MAGISTRATE JUDGE.
matter is currently before the Court on Plaintiff Landis Dale
Joseph Speight's application to proceed in forma
pauperis. [Doc. 1]. For the reasons set forth herein,
the undersigned GRANTS Plaintiff's
request to proceed in forma pauperis
(“IFP”), and after conducting a frivolity review
pursuant to 28 U.S.C. § 1915(e),
RECOMMENDS that Plaintiff's complaint,
[Doc. 1-1], be DISMISSED.
proceeding pro se, seeks to bring a civil action
against Xerox Corporation (“Defendant” or
“Xerox”) pursuant to the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621
et seq. (See Complaint [Doc. 1-1]). Instead
of paying the filing fee to bring his claims in federal
court, Plaintiff requests permission to proceed IFP. [Doc.
1]. The Court first resolves Plaintiff's IFP application
and then proceeds to determine whether Plaintiff's
complaint is frivolous.
In Forma Pauperis Application
affidavit supporting his application to proceed in forma
pauperis, Plaintiff states that he has been unemployed
for over two years and that his only income is $1, 753.00 he
receives in monthly Social Security benefits. Plaintiff
reports that he has no bank accounts, cash on hand, or any
reports average monthly expenses of $1, 825.64, made up of
$440 for housing, $195 for utilities, $150 for food, $50 for
clothing, $100 for laundry and dry cleaning, $26.75 for
transportation, $263.89 for motor vehicle insurance, $400 for
credit card installment payments, and $200 for department
store installment payments. He also states that a
thirty-five-year-old daughter relies on him for support.
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 possesses that the person is unable to pay
such fees or give security therefor.” 28 U.S.C. §
1915(a). This section is intended to provide indigent
litigants with meaningful access to court. Adkins v. E.I.
duPont de Nemours & Co., 335 U.S. 331, 342-43
(1948); 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 plaintiffs. Demon v. Hernandez,
504 U.S. 25, 27 (1992).
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). 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). The
affidavit required by the statute must show an inability to
prepay fees and costs without foregoing the basic necessities
of life. Adkins, 335 U.S. at 339; Zuan v.
Dobbin, 628 F.2d 990, 992 (7th Cir. 1980).
Plaintiff is experiencing long-term unemployment, his assets
are limited,  and his income is insufficient to meet
even his modest costs of living, the Court finds that
Plaintiff cannot pay the fees or costs associated with this
lawsuit without foregoing the basic necessities of life. The
Court therefore GRANTS Plaintiff's
request to proceed IFP.
the Court has determined that Plaintiff may proceed IFP, the
Court must perform a frivolity review. Under 28 U.S.C. §
1915(e), a 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.”
Robert v. Garrett, No. 3:07-cv-625, 2007 WL 2320064,
at *1 (M.D. Ala. Aug. 10, 2007); 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)).
complaint, Plaintiff states that he had worked for Xerox for
more than fourteen years when his employment was terminated
on June 13, 2014, in a reduction in force. [Doc. 1-1 at 7,
11]. At the time of his termination, he was told that he was
eligible for re-hire after six months. [Id.]. After
the six months expired, he applied for thirty-five positions
in the United States and abroad but was not hired.
[Id.]. In one instance, in June 2015, when he was
sixty-one years old, he applied for a Production Control
Specialist position, and although he had experience in the
position, Xerox hired an individual with no such experience.
[Id. at 7, 10-11]. When he learned he was not hired,
Plaintiff filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”), alleging
discrimination based on his age. [Id. at 7, 11]. The
EEOC issued Plaintiff a notice of right to sue on August 18,
2017. [Id. at 12].
March 6, 2018, Plaintiff filed the application to proceed IFP
and associated complaint that are presently before the Court.
[Doc. 1]. In the complaint, Plaintiff raises claims under the
ADEA, alleging that Defendant discriminated against him on