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Retreat LLC v. Chisolm

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

May 23, 2018

RETREAT LLC d/b/a REGAL VISTA, Plaintiff,
v.
SHAMEAKA CHISOLM, Defendant.

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

          ALAN J. BAVERTRMAN UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. Introduction

         Plaintiff 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].[1] 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].

         II. IFP Application

         Defendant's 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].

         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). 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.”).

         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). 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).

         Assuming 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.

         III. Frivolity Determination

         As 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).

         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 general proposition that a complaint should be dismissed as frivolous under § 1915 where subject matter jurisdiction is lacking).

         Independent 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).

         The 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 ...


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