Esposito v. Orange Beech Police et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL ESPOSITO, 	*
*
Plaintiff, 	*
*
v. 	* CIVIL ACTION NO. 1:24-0266-KD-B
*
ORANGE BEACH POLICE, and 	*
KIMBERLEY NEUNER, 	*
*
Defendants. 	*
ORDER
This action is before the Court on review. 	Plaintiff Michael
Esposito 	initiated 	this 	action 	with 	the 	filing 	of 	his 	pro 	se
complaint 	and 	motion 	to 	proceed 	without 	prepayment 	of 	fees.
(Docs. 1, 	2). 	This 	case 	has 	been 	referred 	to 	the 	undersigned
Magistrate 	Judge 	for 	appropriate 	action 	pursuant 	to 	28 	U.S.C. 	§
636(b)(1) 	and 	S.D. 	Ala. 	GenLR 	72(a)(2)(S). 	Upon 	consideration,
Mr. Esposito’s motion is DENIED.
I. 	Background
A 	review 	of 	Mr. Esposito’s 	motion 	to 	proceed 	without
prepayment 	of 	fees 	(Doc. 	2) 	reveals 	that 	he 	is 	married 	and 	has
four 	dependents 	for 	whom 	he 	contributes 	$1000 	monthly 	for 	their
support. 	(Id. 	at 	1). 	Mr. Esposito 	avers 	that 	he 	is 	employed
earning $1,200 per month, and that he receives $1300 per month in
Supplemental 	Security 	Income 	benefits. 	(Id. 	at 	1-3). 	According
to Mr. Esposito, he owns a condo valued at $300,000 (with $130,000

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owed), 	and 	a 	vehicle 	valued 	at 	$20,000 	(with 	$15,000 	owed). 	(Id.
at 2). 	Mr. Esposito avers that his monthly financial obligations
total 	$1700 	and 	that 	he 	has 	$16,000 	in 	a 	joint 	bank 	account 	with
his spouse. (Id.).
II. 	Discussion
Section 1915 provides, in relevant part, for the prepayment
of fees and costs as follows:
(a)(1) Subject to subsection (b), any 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 prisoner 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.
28 	U.S.C. 	§ 	1915(a)(1). 	Pursuant 	to 	28 	U.S.C. 	§ 	1915, 	indigent
persons 	are 	afforded 	equal 	access 	to 	the 	judicial 	system 	through
the 	in 	forma 	pauperis 	statute. 	Attwood 	v. 	Singletary, 	105 	F.3d
610, 	612-613 	(11th 	Cir. 	1997). 	This 	statutorily-created
opportunity 	to 	proceed 	as 	an 	indigent 	in 	civil 	cases 	is 	not
considered 	a 	right, 	but 	a 	privilege, 	Rivera 	v. 	Allin, 	144 	F.3d
719, 724 (11th Cir. 1998), abrogated on other grounds by Jones v.
Bock, 549 U.S. 199, 204 n.2 (2007), and as such, it should not be
viewed as “a broad highway into the federal courts.” 	Phillips v.
Mashburn, 	746 	F.2d 	782, 	785 	(11th 	Cir. 	1984) 	(citation 	omitted).

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Thus, 	“[a] 	trial 	court 	has 	broad 	discretion 	in 	denying 	an
application to proceed in forma pauperis under 28 U.S.C.A. § 1915,
[but 	it] 	must 	not 	act 	arbitrarily 	and 	it 	may 	not 	deny 	the
application on erroneous grounds.” 	Pace v. Evans, 709 F.2d 1428,
1429 (11th Cir. 1983).
Where it appears that an applicant’s access to court has not
been blocked by his or her financial condition, but that he or she
is 	merely 	in 	the 	position 	of 	having 	to 	weigh 	the 	financial
constraints imposed if he or she pursues her position against the
merits of the case, then a court properly exercises its discretion
in 	denying 	the 	application. 	Fridman 	v. 	City 	of 	New 	York,
195 F. Supp. 	2d 	534, 	537 	(S.D.N.Y. 	2002). 	When 	considering 	a
motion 	filed 	pursuant 	to 	§ 1915(a), 	“[t]he 	only 	determination 	to
be 	made 	by 	the 	court 	. 	. 	. 	is 	whether 	the 	statements 	in 	the
affidavit 	satisfy 	the 	requirement 	of 	poverty.” 	Watson 	v. 	Ault,
525 F.2d 	886, 	891 	(5th 	Cir. 	1976) 	(citation 	omitted). 	Such 	an
affidavit 	will 	be 	held 	sufficient 	if 	it 	represents 	that 	the
litigant, 	because 	of 	his 	poverty, 	is 	unable 	to 	pay 	for 	the 	court
fees and costs, and to support and provide necessities for himself
and 	his 	dependents. 	Adkins 	v. 	E.I. 	DuPont 	de 	Nemours 	& 	Co.,
335 U.S. 331, 339 1948).
The 	undersigned 	finds, 	based 	upon 	the 	financial 	information
submitted 	by 	Mr. Esposito, 	that 	he 	has 	adequate 	resources 	with
which to pay the required filing fee. 	As noted supra, Mr. Esposito

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reports 	that 	he 	has 	$750 	in 	disposable 	income 	after 	meeting 	his
monthly 	financial 	obligations, 	in 	addition 	to 	$16,000 	in 	a 	joint
checking account. 	He possesses the financial resources with which
to 	pay 	the 	statutory 	filing 	fee. 	In 	other 	words, 	it 	does 	not
appear that requiring Mr. Esposito to pay the statutory filing fee
would 	deprive 	him 	of 	the 	basic 	necessities 	of 	life. 	For 	these
reasons, the undersigned finds as follows:
1. 	Mr. Esposito’s 	motion 	to 	proceed 	without 	prepayment 	of
fees (Doc. 2) is hereby DENIED;
2. 	Mr. Esposito 	is 	hereby 	ORDERED 	to 	pay 	the 	$405.00
statutory filing fee by September 30, 2024.
Mr. Esposito 	is 	cautioned 	that 	failure 	to 	comply 	with 	this
Order 	by 	failing 	to 	pay 	the 	statutory 	filing 	fee 	within 	the
prescribed 	time 	will 	result 	in 	a 	recommendation 	that 	this 	action
be dismissed for failure to prosecute and obey the Court’s Order.
DONE this 16th day of September, 2024.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE