IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

BENITA D. NESBY, § 

§ 

§ 

vs. § CIVIL ACTION No. 4:22-CV-167-P (BJ) 

§ 

ALL COMMERCIAL FLOORS § 

FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER 

(With Special Instructions to the Clerk of Court) 

In this case, Plaintiff has filed a civil case with a motion for leave to proceed in forma 

pauperis. Resolution of the motion was refel1'ed to the United States Magistrate Judge pursuant to 

the provisions of28 U.S.C. § 636(b) and Miscellaneous Order No. 6. 1 The findings, conclusions and 

recommendation of the United States Magistrate Judge are as follows: 

FINDINGS AND CONCLUSIONS: 

A. NATURE OF THE CASE 

This case is a new civil action. 

B. PARTIES 

Benita D. Nesby is the plaintiff. The defendant listed by Plaintiff is All Commercial Floors. 

ECF No. 1. 

C. LEGAL ANALYSIS 

Plaintiff accompanied her civil complaint with a fully completed long-form motion to 

proceed in forma pauperis under 28 U.S.C. § 1915 et. seq. ECF No. 2. That motion/application 

includes the income and asset information for the plaintiff. A review of the financial information 

1

Order for the Adoption of Rules for the Exercise of Powers and Performances of duties by United 

States Magistrate Judges, signed May 5, 2005. 

Case 4:22-cv-00167-P Document 6 Filed 03/08/22 Page 1 of 4 PageID 21
submitted in the long-form application/motion reflects that Plaintiff presently receives 

unemployment in the amount of $2,200 per month. ECF No. 2 at 2. Courts consistently consider 

unemployment compensation in making the in-forma-pauperis determination. 2 Plaintiff also reports 

receiving social security disability income. ECF No. 2 at 2. Courts also consider social security type 

benefit payments in making the in-forma-pauperis determination.3 Plaintiff lists no dependents, but 

otherwise references a "minor son," so the Court will assume she has a family of two for purposes 

of the applicable pove1ty guidelines. Such guideline for a family of two is $18,310. With the income 

from unemployment compensation and social security payments, Plaintiffs available monthly 

financial support of$4,102 and annualized to $49,224, is significantly above the poverty level. The 

information in this application thus shows that Plaintiff has sufficient resources available to pay the 

applicable fees. Thus, after review and consideration of the application/motion to proceed in forma 

pauperis, the undersigned finds the motion to proceed IFP should be denied, and will make such a 

recommendation. 

RECOMMENDATION 

It is therefore RECOMMEND ED that Plaintiffs March 7, 2022 motion to proceed in forma 

pauperis [ECF No. 2 ] be DENIED by the district judge. 

2

See, e.g., Cornish v. Texas Dept. of Protective and Regulatory Service, No. 3:04-CV-969-K, 2004 

WL 1305809, at *l (N.D. Tex. June 10, 2004), rep. and rec. adopted, 2004 WL 1819018 (Aug. 12, 2004); 

Grant v. Shiflett, No.3:03-CV-1959-R, 2003 WL 22466210, at *l (N.D. Tex. Oct. 23, 2004), rep. and rec. 

adopted, (November 12, 2004); Ponderv. Schultz, No.3 :02-CV-1353-P, 2002 WL 3114054, at *2 (N.D. Tex. 

Sep. 20, 2002). 

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See, e.g.,Lewis v. Center Market, 378 F. App'x 780, 784-85 (10th Cir. May 17, 2010) (affirming 

district comt' s denial of IFP status to appellant whose only income sources were social security and 

unemployment benefits); Salterv. Johnson, No.3: 12CV738-HTW,2013 WL 550654, * 1 (S.D. Miss. Jan. I 8, 

2013) (noting that income includes social security payments),rep. and rec. adopted, 2013 WL 55065 (Feb. 

12, 2013); Mitchell v. Champs Sports, 42 F.Supp. 2d 642,648 (E.D. Tex. Dec. 15, 1998). 

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It is further RECOMMENDED that the district judge infmmPlaintiffthat the complaint will 

be subject to dismissal without further notice under Federal Rule of Civil Procedure 41 (b ), unless 

Plaintiff pays to the clerk of Comt the filing and administrative fees of $402.004 within seven (7) 

days after the district judge's order. 

NOTICE OF RIGHT TO OBJECT TO PROPOSED 

FINDINGS, CONCLUSIONS AND RECOMMENDATION 

AND CONSEQUENCES OF FAILURE TO OBJECT 

A copy of this report and recommendation shall be served on all parties in the manner 

provided by law. Under 28 U.S.C. § 636(b)(l), each paityto this action has the right to serve and file 

specific written objections in the United States District Court to the United States Magistrate Judge's 

proposed findings, conclusions, and recommendation within fourteen (14) days after the paity has 

been served with a copy of this document. The United States District Judge need only make a de 

novo determination of those portions of the United States Magistrate Judge's proposed findings, 

conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 

636(b )(I). Failure to file by the date stated above a specific written objection to a proposed factual 

finding or legal conclusion will bai· a patty, except upon grounds of plain error or manifest injustice, 

from attacking on appeal any such proposed factual findings and legal conclusions accepted by the 

United States District Judge. See Douglass v. United Servs. Auto Ass 'n, 79 F.3d 1415, 1428-29 (5th 

Cir. 1996) (en bane), superseded by statute 28 U.S.C. § 636(b)(l) (extending the deadline to file 

objections from ten to fomteen days). 

4

111 addition to the filing fee of $350, the District Court Miscellaneous Fee Schedule requires 

payment of an administrative fee for filing a civil action in district comt of $52. See 28 U.S.C.§ I 914(a) and 

District Court Miscellaneous Fee Schedule, note 14. 

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Case 4:22-cv-00167-P Document 6 Filed 03/08/22 Page 3 of 4 PageID 23
ORDER 

Under 28 U.S.C. § 636, it is ORDERED that Plaintiff is granted until March 22, 2022 to 

serve and file written objections to the United States Magistrate Judge's proposed findings, 

conclusions and recommendation. 

It is fmiher ORDERED that the above-styled and numbered action, previously referred to 

the United States Magistrate Judge for findings, conclusions and recommendation, be and is hereby, 

RETURNED to the docket of the United States District Judge. 

SIGNED March ll_, 2022. 

RETON 

STATES MAGISTRATE JUDGE 

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