Pour v. Black

ORDER ADOPTING REPORT AND RECOMMENDATION

WINGATE, District Judge.

Before the court is the Report and Recommendation of the United States Magistrate Judge denying the motion of the plaintiff in the above styled and numbered cause to proceed with this lawsuit in forma pauperis. The statutory foundation for the Magistrate Judge’s conclusion is Title 28 U.S.C. § 1915(a) which provides in pertinent part that “[a]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that he is entitled to redress.” Additionally, subsection (d) of the statute provides that “[t]he court ... may dismiss ... if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” See Graves v. Hampton, 1 F.3d 315 (5th Cir.1993) (a district court may dismiss a petition to proceed in forma pauperis if the court is satisfied that the petition is either frivolous or malicious. Moreover, this court has broad discretion in determining at any time whether a case filed informa pauper-is is filed either frivolously or maliciously). See Wesson v. Oglesby, 910 F.2d 278 (5th Cir.1990).

This court finds that the decision of the United States Magistrate Judge to deny the plaintiffs request to proceed in forma pauperis is well taken. The plaintiff filed this complaint ostensibly in an attempt to have a professional license in the State of Mississippi reinstated, a matter which, standing alone, is not a matter within this court’s jurisdiction. The plaintiffs affidavit filed in support of his request to proceed in forma pauperis states that “since oct. 1986, defendants has deprived me from work (in my profession).” While the affidavit says that the plaintiff has earned no income in the last five years, the affidavit also states that the plaintiff earned $150,000.00 in 1991 while engaged in “moonlighting.” Thus, this court finds that a substantial question is raised regarding the plaintiffs assertion that this lawsuit would be beyond his economic means, particularly if he is capable of earning such sums when he chooses to do so. Leave to proceed in forma pauperis should not be granted unless it reasonably appears that the cost of filing would be beyond the petitioner’s means. Carroll v. United States, 320 F.Supp. 581, 582 (D.C.Tex.1970); Ward v. Werner, 61 F.R.D. 639, 640 (M.D.Pa.1974), citing Carroll v. United States.

Furthermore, in Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989), the United States Supreme Court held that an action is frivolous if it lacks an arguable basis in law or fact. Presently, this court is unable to ascertain the plaintiffs claims. The document purporting to be a complaint is a series of rambling paragraphs charging murder, embezzlement and monopoly. The complaint states that one of the defendants was filthy, that he wasted taxpayer’s money, and that he interfered with a deposition. The complaint is utterly void of any continuity and presents in its current form no justification for permitting the plaintiff to proceed with a federal lawsuit at public expense.

Leave to proceed in forma pau-peris is a privilege, not a right. See Shobe v. California, 362 F.2d 545 (9th Cir.), cert. denied, 385 U.S. 887, 87 S.Ct. 185, 17 L.Ed.2d 115 (1966). This court is unpersuaded that the privilege would not be abused if the plaintiff was permitted to proceed in forma pauperis in the instant case. Therefore, this court, having thoroughly reviewed this matter and having found no basis for allowing the plaintiff to proceed with this lawsuit at public expense, hereby adopts the Report and Recommendation of the United States Magistrate Judge denying the plaintiffs motion to proceed informa pauperis.

SO OREDERED.