*

Pursuant to 28 U.S.C. § 1915(a)(1): 

. . . [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 or security 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

or give security therefor. Such affidavit shall state the nature of the action, defense or appeal

and affiant’s belief that the person is entitled to redress.

Memorandum Opinion and Order - Page 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ALLEN J. BURTON, §

 §

Plaintiff, §

§

v. § Civil Action No. 3:05-CV-1081-L

§

MADIX STORE FIXTURES, §

 §

Defendant. §

MEMORANDUM OPINION AND ORDER

Plaintiff Allen J. Burton (“Plaintiff”) filed a pro se employment discrimination complaint

against Defendant Madix Store Fixtures on May 26, 2005, and on the same date filed a Motion to

Proceed In Forma Pauperis stating that he is unable to pay the $250 filing fee.*

 Pursuant to 28

U.S.C. § 636(b), and an order of the court in implementation thereof, this action was referred to the

United States magistrate judge on May 31, 2005 for proposed findings and recommendation. On

June 8, 2005, the United States magistrate judge issued an order deeming Plaintiff’s motion

insufficient to determine whether Plaintiff is entitled to proceed in forma pauperis. The magistrate

judge ordered Plaintiff to complete and file an enclosed affidavit. Plaintiff subsequently complied

with this order by submitting an Affidavit in Support of Request to Proceed In Forma Pauperis on

July 1, 2005 (“Affidavit in Support”). On July 20, 2005, the Findings, Conclusions and

 

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Memorandum Opinion and Order - Page 2

Recommendation of the United States Magistrate Judge were filed, to which Plaintiff filed

objections on July 28, 2005.

I. The Magistrate Judge’s Findings and Recommendation

After carefully considering Plaintiff’s Affidavit in Support, the magistrate judge found that:

Plaintiff has failed to show that he is a person entitled to proceed

without the payment of the $250 filing fee . . . [Plaintiff] and his wife

are presently employed, although it is unclear whether Plaintiff is

currently working or whether he is receiving disability payments

only. . . . The amount of their combined monthly income is also

unclear: from a low gross monthly pay of $926.40, to a high average

monthly amount during the past twelve months of $3,300. In May

2005 Plaintiff received a [sic] $2600 from his 401(k), and in May and

June 2005, he received a monthly check of $731 for disability

insurance . . . In July 2005, Plaintiff and his wife expected to earn

from employment approximately $2500 . . . While Plaintiff and his

wife are behind in their bills allegedly due to “mounting medical

expense[s],” their average monthly expenses total approximately

$2,781. Moreover, Plaintiff and his wife own real estate at a selfappraised value of $58,000, and two vehicles with a combined selfappraised value of $8000.

Findings at 2-3 (internal citations omitted). Based on these findings, the magistrate judge concluded

that Plaintiff could pay the $250 filing fee without suffering undue financial hardship, and therefore

recommended the denial of Plaintiff’s motion to proceed in forma pauperis.

II. Plaintiff’s Objections

Plaintiff objects to the magistrate judge’s findings asserting that he has not worked since

April 11, 2005, and that he is currently only receiving disability checks. Objection at 1. Plaintiff

also reiterates that his current expenses are mandatory as the result of a “current medical crisis.”

See id. Plaintiff asks that for these reasons, the magistrate judge’s findings should be set aside and

he be allowed to proceed in forma pauperis. For the reasons set forth directly below, the court

 

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Memorandum Opinion and Order - Page 3

overrules Plaintiff’s objections and accepts the magistrate judge’s findings, conclusions and

recommendation. 

III. Analysis

Plaintiff’s assertions that he is currently receiving only disability checks (and not a

paycheck), and that his medical expenses are mandatory do not alter the fact that Plaintiff and his

wife own real estate at a self-appraised value of $58,000, and two vehicles with a combined selfappraised value of $8000. See Findings at 3. In addition, as the magistrate judge pointed out, as per

certain of Plaintiff’s own calculations, Plaintiff and his wife had a high average gross monthly pay

during the past twelve months of $3,300, whereas their average monthly expenses total

approximately $2,781. As correctly stated by the magistrate judge: “The mere execution of an

affidavit of indigence does not automatically entitle a litigant to proceed in forma pauperis. Courts

should make the assessment of financial ability after considering whether payment of the filing fee

will result in the plaintiff ‘suffering undue hardship.’” Id. at 2 (quoting Prows v. Kastner, 842 F.2d

138, 140 (5th Cir. 1988)). Having considered Plaintiff’s Objections, and having conducted a de novo

review of the Affidavit in Support and considered Plaintiff’s assets, the court determines that paying

the $250 filing fee would not result in Plaintiff suffering undue hardship. 

IV. Conclusion

Having reviewed the pleadings, file and record in this case, the findings and conclusions of

the magistrate judge, and having considered Plaintiff’s objections thereto, the court determines that

the findings, conclusions and recommendation are correct in recommending denial of Plaintiff’s

motion to proceed in forma pauperis. Accordingly, the court accepts the Findings, Conclusions and

Recommendation of the United States Magistrate Judge. It is hereby ordered that Plaintiff’s Motion

 

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Memorandum Opinion and Order - Page 4

to Proceed In Forma Pauperis is denied. The court directs Plaintiff to tender the $250 filing fee

by October 3, 2005. If the filing fee is not tendered by such date, the court will dismiss this action

pursuant to Fed. R. Civ. P. 41(b). 

It is so ordered this 1st day of September, 2005.

_________________________________

Sam A. Lindsay

United States District Judge

 

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