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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

District Court 

Mr. Michael Moates, MA, QBA, LBA, 

Plaintiff

v.

Michael Arismendez, in his capacity as Executive 

Director of the Texas Department of Licensing and 

Regulation;

Texas Department of Licensing and Regulation; and

Behavior Analyst Certification Board;

Case No.: 

ORAL ARGUMENT REQUESTED

OBJECTION TO THE 

RECCOMMENDATION OF THE 

MAGISTRATE JUDGE FINDINGS 

AND MOTION TO SET ASIDE

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A. OBJECTIONS TO THE REPORT:

1. When considering the motion to proceed in forma pauperis, the magistrate judge failed to 

even evaluate the circumstances of the afraid provided. Judge Cureton states that the 

basis to deny the Plaintiffs’ application for leave to proceed in forma pauperis is based on 

his income of $2,600. However, if he had looked at the Plaintiffs income for the last 12 

months, he would have noticed that he was unemployed, and the income was 0. Further, 

the Plaintiff lost his previous job because of the COVID 19 pandemic. 

2. Expecting to make $2,600 this month given the Plaintiffs new job, does not account for 

the circumstances of catching up on past payments due to unemployment, it does not 

factor in the cost of resources needed to work at home, it does not factor in health 

insurance, car payments, rent, phone bill, auto insurance, utilities, food, clothing, 

transportation, etc. 

3. Further, the Plaintiff simply does not have the funds to pay. It would be a grave 

miscarriage of justice to deny him the right to proceed in court because he would be 

unable to proceed and thus be forced to have the claim dismissed. This would of course 

be after all appeals are exhausted.

4. The Magistrate Judge calculates the Plaintiffs income based on the poverty level. But the 

Plaintiff has not even made $5,000 in the last year. Further, the Plaintiff must catch up on 

previous bills and past due payments. The Plaintiff has been relying on loans to pay his 

bills where possible. In his legal analysis, he does not even evaluate the expenses the 

Plaintiff is facing. He starts with $2,600 and after all deductions ends with $-157.00. This 

does not include the costs he has already received from the Defendants in this case. 

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5. The Plaintiff request the District Judge set aside the Recommendations of the Magistrate 

Judge and grant the application to proceed in forma pauperis. In the alternative, the 

Plaintiff requests the District Judge hold a hearing on the matter. The Plaintiff submits 

that the Magistrate Judge did not consider all of the facts or circumstances and that 

working for one month after being unemployed for the last year does not give the 

Plaintiff the resources needed to proceed in this action.

6. 28 U.S.C. § 1915(a)(1). “The mere execution of an affidavit of indigence does not 

automatically entitle a litigant to proceed in forma pauperis. Rather, the court enjoys limited 

discretion to grant or deny a motion for leave to proceed in forma pauperis based upon the 

financial statement set forth within the applicant’s affidavit.” Heath v. I.R.S., No. 3-02-CV1518-H, 2002 WL 31086069, *1 (N.D. Tex. Sept. 16, 2002) (citing Adkins v. E.I. Du Pont 

De Nemours & Co., Inc., 335 U.S. 331, 337 (1948); Green v. Estelle, 649 F.2d 298, 302 (5th 

Cir. Unit A June 1981); 28 U.S.C. § 1915(a)). A plaintiff who wishes to proceed in forma 

pauperis must file an affidavit attesting to his indigency. See 28 U.S.C. § 1915(a)(1). “The 

affidavit is sufficient if it states that, due to poverty, plaintiff cannot afford to pay the costs of 

legal representation and still provide for himself and his dependents.” Bright v. Hickman, 96 

F. Supp. 2d 572, 575 (E.D. Tex. 2000) (citing Adkins, 335 U.S. at 339; Weber v. Holiday 

Inn, 42 F. Supp. 2d 693, 697 (E.D. Tex. 1999)). “While plaintiff does not need to be 

absolutely destitute to qualify for in forma pauperis status, such benefit is allowed only when 

plaintiff cannot give such costs and remain able to provide for himself and his dependents.”

7. Here the Plaintiff has shown that he would not have the ability to pay court costs and provide 

for himself, therefore, requests the court grant the application. Should this status change, the 

Plaintiff commits to notifying the court in writing.

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Respectfully Submitted,

/s/ Michael S. Moates, MA, QBA, LBA

michael@gibpe.org

michaelsmoates@gmail.com

2700 Colorado Boulevard #1526

Denton, TX 76210

Cell Phone: 817-999-7534

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