United States District Court, N.D. Georgia, Atlanta Division
UNITED STATES MAGISTRATE JUDGE'S ORDER AND FINAL
REPORT & RECOMMENDATION
J. BAVERTRMAN UNITED STATES MAGISTRATE JUDGE
matter has been submitted to the undersigned upon Defendant
Shameaka Chisolm's application to proceed in forma
pauperis (“IFP”) and notice of removal.
[Doc. 1]. For the following reasons, the Court
GRANTS Defendant's IFP request but
RECOMMENDS that this matter be
REMANDED to the Magistrate Court of DeKalb
County due to lack of subject matter jurisdiction.
Retreat LLC d/b/a Regal Vista filed a dispossessory
action against Defendant on April 18, 2018, in the Magistrate
Court of DeKalb County, seeking possession of the premises at
3578 Pleasantbrook Village Lane, Apartment E, Doraville,
Georgia 30340, and back rent. [Doc. 1-1 at 4]. Defendant removed
the action to this Court on May 21, 2018, contending that
Plaintiff violated the Fair Debt Collection Practice Act
(“FDCPA”) and 42 U.S.C. § 3631.
[Id. at 1-2].
IFP application lists monthly income of $250 in child support
and indicates that Defendant is unemployed, that she has no
savings or assets, and six dependent children. [Doc. 1 at
1-3]. Defendant lists monthly expenses of $1200 in rent, $275
in utilities, $250 in clothing, $300 in transportation, and
$80 in laundry and dry-cleaning, totaling $2213.
[Id. at 4-5].
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 possesses that the person is
unable to pay such fees or give security therefor.”
Id. § 1915(a). This section is intended to
provide indigent litigants with meaningful access to courts.
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.”).
§ 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). 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).
the facts asserted in the IFP are true, Defendant's
monthly expenses exceed her monthly income. [Doc. 1 at 1-4].
Accordingly, her IFP application, [Doc. 1], is
GRANTED for purposes of this action only.
Defendant is entitled to proceed IFP, the Court must 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,
490 U.S. at 327).
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 general proposition that a complaint should
be dismissed as frivolous under § 1915 where subject
matter jurisdiction is lacking).
of the Court's duty under § 1915(e) to evaluate the
claim of a party proceeding IFP, the Court also has an
obligation to insure that subject matter jurisdiction exists.
“ ‘Subject matter jurisdiction . . . refers to a
tribunal's power to hear a case.' ” Lobo v.
Celebrity Cruises, Inc., 704 F.3d 882, 891
(11th Cir. 2013) (quoting Morrison v.
Nat'l Australia Bank, Ltd., 561 U.S. 247, 254
(2010)). “As the Federal Rules of Civil Procedure
state, ‘If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the
action.' ” Williams v. Warden, Federal Bureau
of Prisons, 713 F.3d 1332, 1337-38 (11th Cir.
2013) (quoting Fed.R.Civ.P. 12(h)(3)); accord Gonzalez v.
Thaler, 586 U.S. 134, 141 (2012) (“When a
requirement goes to subject-matter jurisdiction, courts are
obligated to consider sua sponte issues that the
parties have disclaimed or have not presented.”);
id. (“Subject-matter jurisdiction can never be
waived or forfeited.”); see also Cadet v.
Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004)
(“Federal courts are obligated to inquire into
subject-matter jurisdiction sua sponte whenever it may be
lacking.”) (quotation marks omitted).
Court must liberally construe pro se pleadings, holding them
to a less stringent standard than pleadings drafted by
attorneys. Hughes v. Lott, 350 F.3d 1157, 1160
(11th Cir. 2003) (citation omitted). However, the
leniency afforded pro se litigants does not give the courts
license to serve as de facto counsel or permit them
to rewrite an otherwise deficient pleading in order to
sustain an action. Hudson v. Middle FlintBehavioral Healthcare, 522 Fed.Appx. 594, 596
(11th Cir. June 20, 2013) (citing GJR Inv.,
Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369
(11th Cir. 1998)). Moreover, “[l]iberal
construction has its limits . . . and this court may not
rewrite an otherwise deficient [pleading] in order to ...