Thomas v. Califano

MEMORANDUM AND ORDER

NEALON, Chief Judge.

Plaintiff in this action seeking “Black Lung” benefits, see 42 U.S.C. § 405(g), has petitioned the court to proceed in forma pauperis. The petition is supported by an affidavit stating that plaintiff’s most recent employment was in 1970, that he owns a home valued at $20,000 and a car valued at $200, that his only income is $100 per month in Pennsylvania Occupational Disease Benefits of which $28 is used to purchase $97 in food stamps, and his spouse is dependent upon him for her support. The anticipated costs in this action are the $15 filing fee and $3 for costs of service. Presently before the court is the question of whether petitioner should be granted permission to proceed in forma pauperis. See 28 U.S.C. § 1915.

In Failor v. Califano, 79 F.R.D. 12 (M.D.Pa.1978), permission to proceed in for-ma pauperis was denied where the plaintiff had an asset in the form of a $20,000 home, was the sole means of support for her spouse and son, had debts of $230, and had a monthly income of $409. Anticipated costs were identical to those here. The court in Failor compared the assets, income, and anticipated costs with those involved in other cases, see Souder v. McGuire, 516 F.2d 820 (3d Cir. 1975); Brewster v. North American Van Lines, Inc., 461 F.2d 649 (7th Cir. 1972); In re Stump, 449 F.2d 1297 (1st Cir. 1971); United States ex rel. Irons v. Pennsylvania, 407 F.Supp. 746 (M.D.Pa. 1976); McClure v. Salvation Army, 51 F.R.D. 215 (N.D.Ga.1971), and held that it was not unreasonable to require the plaintiff to pay the filing fee and the costs of service of process. For example, McClure involved $474 in monthly “take home pay”, and the expenditure of a substantial amount of money to obtain a 260-page transcript, while Failor involved a roughly comparable monthly income, a substantial asset in the form of home, and a significantly smaller anticipated expenditure for fees and costs.

Comparing the petition here with the circumstances in Failor and the cases cited supra, permission to proceed in forma pauperis, will be granted. Plaintiff here supports two persons with an income (without adjusting for inflation) that is about one-fifth of that in Failor. Although, as in Failor, plaintiff owns a home valued at $20,000 and, unlike Failor, a car with nominal value, neither of these assets is readily convertible into cash. The court’s decision in Failor did not anticipate that the in forma pauperis applicant would borrow a small amount of money using the home as collateral; rather, from the circumstances set forth in the affidavit, it appeared that the income in Failor would permit a payment of $18 for the costs of the action.¹ Here, a monthly income of $100 would hardly allow for even an $18 expenditure for the costs of the action.² Consequently, permission to proceed in forma pauperis will be granted.

1 . The filing fee in Failor has been paid.

2 . Neither would it allow for the payment of interest on a small loan taken out by using the house as collateral.