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Joseph Speight v. Xerox Corp.

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

March 26, 2018

LANDIS DALE JOSEPH SPEIGHT, Plaintiff,
v.
XEROX CORPORATION, Defendant.

          UNITED STATES MAGISTRATE JUDGE'S ORDER AND FINAL REPORT AND RECOMMENDATION

          ALAN J. BAVERMAN UNITED STATES MAGISTRATE JUDGE.

         This 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.

         I. Introduction

         Plaintiff, 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.

         II. In Forma Pauperis Application

         In his 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 other assets.

         Plaintiff 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.

         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[1] 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).

         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).[2] 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).

         Because Plaintiff is experiencing long-term unemployment, his assets are limited, [3] 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.

         III. Frivolity Review

         Because 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)).

         In his 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.[4] [Id. at 7, 11]. The EEOC issued Plaintiff a notice of right to sue on August 18, 2017. [Id. at 12].

         On 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 ...


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