Johnson v. Department of Corrections ( 2019 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 18-cv-60013-BLOOM/Reid RODRICK JOHNSON, Petitioner, v. MARK INCH, Respondent. / ORDER GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS THIS CAUSE is before the Court upon Petitioner Rodrick Johnson’s (“Petitioner”) Application to Proceed in Forma Pauperis on Appeal (“Application”), ECF No. [41]. The Court has carefully considered the Application, its attendant affidavit, and the record in this case, and is otherwise fully advised. For the reasons that follow, Petitioner’s Application is granted. Fundamental to our system of justice is that the courthouse doors will not be closed to persons based on their inability to pay a filing fee. Congress has provided that a court “may authorize the commencement, prosecution, or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees . . . therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees.” 28 U.S.C. § 1915(a)(1); see Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 n.1 (11th Cir. 2004) (interpreting statute to apply to all persons seeking to proceed in forma pauperis). Section 1915(a) requires a determination as to whether “the statements in the [applicant’s] affidavit satisfy the requirement of poverty.” Watson v. Ault, 525 F.2d 886, 891 (5th Cir. 1976).1 An applicant’s “affidavit will be held sufficient if it represents that the litigant, because of his poverty, is unable to pay for the court fees and costs, and to support and provide necessities for himself and his dependents.” Martinez, 364 F.3d at 1307; see also Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (In forma pauperis status is demonstrated when, because of poverty, one cannot “pay or give security for the costs and still be able to provide himself and dependents with the necessities of life.”). The Department of Health and Human Services (HHS) poverty guidelines are central to an assessment of an applicant’s poverty. See Taylor v. Supreme Court of N.J., 261 F. App’x 399, 401 (3d Cir. 2008) (using HHS Guidelines as basis for § 1915 determination); Lewis v. Ctr. Mkt., 378 F. App’x 780, 784 (10th Cir. 2010) (affirming use of HHS guidelines); see also Income Level for Individuals Eligible for Assistance, 82 Fed. Reg. 10442 (Feb. 13, 2017). Further, the § 1915 analysis requires “comparing the applicant’s assets and liabilities in order to determine whether he has satisfied the poverty requirement.” Thomas v. Chattahoochee Judicial Circuit, 574 F. App’x 916, 917 (11th Cir. 2014). Ultimately, permission to proceed in forma pauperis is committed to the sound discretion of the Court. Camp v. Oliver, 798 F.2d 434, 437 (11th Cir. 1986) (“[P]ermission to proceed [IFP] is committed to the sound discretion of the court.”). To the extent Petitioner is appealing the Court’s Order Adopting Magistrate Judge’s Report and Recommendation, ECF No. [31], Petitioner may proceed in forma pauperis on appeal. Petitioner swears in his affidavit that he is incarcerated, does not earn any wages, and is currently unemployed. See ECF No. [41]. Petitioner has also attached a copy of his inmate account reflecting a current account balance of $0.00. Id. at 8. Upon review of the HHS poverty guidelines and after examining Petitioner’s financial situation, the Court determines that 1 Pursuant to Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), opinions of the Court of Appeals for the Fifth Circuit issued prior to October 1, 1981, are binding precedent in the Eleventh Circuit. Case No. 18-cv-60013-BLOOM/Reid Petitioner is unable to pay the required filing fee as required for indigent status under § 1915. Accordingly, it is ORDERED AND ADJUDGED that Petitioner’s Motion, ECF No. [41], is GRANTED. DONE AND ORDERED in Chambers at Miami, Florida, on December 3, 2019. BETH BLOOM UNITED STATES DISTRICT JUDGE Copies to: Counsel of Record Rodrick Johnson L52319 South Bay Correctional Facility Inmate Mail/Parcels 600 U.S. Highway 27 South South Bay, Florida 33493-2233