White v. Pilot Catastrophe Services, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LUANN WHITE, )
Plaintiff, )
)
v. ) CIVIL ACTION NO. 1:25-00225-KD-N
)
PILOT CATASTROPHE )
SERVICES, INC., )
Defendant. )
ORDER
The Plaintiff, LUANN WHITE, who is proceeding without counsel (pro se),
commenced this civil action by filing a complaint with the Court on May 28, 2025. See
(Doc. 1); Fed. R. Civ. P. 3. Contemporaneously, White filed a motion for leave to
proceed without prepayment of fees and costs, or in forma pauperis (“IFP”), under 28
U.S.C. § 1915 (Doc. 2). The assigned District Judge has referred the IFP motion to
the undersigned Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)-
(b), Federal Rule of Civil Procedure 72, and S.D. Ala. GenLR 72(a). See S.D. Ala.
GenLR 72(b); (05/28/2025 electronic reference).
Authority for granting a plaintiff permission to proceed without prepayment of
fees and costs is found at 28 U.S.C. § 1915, which provides as follows:
[Subject to inapplicable exceptions], 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.
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28 U.S.C. § 1915(a)(1).1 “The in forma pauperis statute, 28 U.S.C. § 1915, ensures
that indigent persons will have equal access to the judicial system.” Attwood v.
Singletary, 105 F.3d 610, 612-613 (11th Cir. 1997) (citing Coppedge v. United States,
369 U.S. 438, 446 (1962)). However, “[t]here is no question that proceeding in forma
pauperis is a privilege, not a right,” Camp v. Oliver, 798 F.2d 434, 437 (11th Cir.
1986),2 and “should not be a broad highway into the federal courts.” Phillips v.
Mashburn, 746 F.2d 782, 785 (11th Cir. 1984) (per curiam). Nevertheless, “while a
trial court has broad discretion in denying an application to proceed in forma pauperis
under 28 U.S.C.A. § 1915, 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) (per curiam) (citing Flowers v. Turbine Support Div., 507 F.2d 1242, 1244 (5th
Cir. 1975)); see also Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306-07 (11th
Cir. 2004) (per curiam) (“[A] trial court has wide discretion in denying an application
to proceed IFP under 28 U.S.C. § 1915…However, in denying such applications a
court must not act arbitrarily. Nor may it deny the application on erroneous grounds.”
(quotation omitted)).
1 “Despite the statute's use of the phrase ‘prisoner possesses,’ the affidavit
requirement applies to all persons requesting leave to proceed IFP.” Martinez v. Kristi
Kleaners, Inc., 364 F.3d 1305, 1306 n.1 (11th Cir. 2004) (per curiam).
2 Accord Rivera v. Allin, 144 F.3d 719, 722, 724 (11th Cir. 1998) (“Leave to proceed
IFP is, and always has been, the exception rather than the rule. To commence a civil
lawsuit in federal district court, the general rule is that initiating parties must prepay
a filing fee … To be sure, proceeding IFP in a civil case is a privilege, not a right—
fundamental or otherwise.”), abrogated on other grounds, Jones v. Bock, 549 U.S. 199
(2007).
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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 ([5]th Cir. 1976). An affidavit addressing the statutory language should
be accepted by the court, absent a serious misrepresentation, and need not
show that the litigant is “absolutely destitute” to qualify for indigent status
under § 1915. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 338–
40, 69 S. Ct. 85, 88–89, 93 L. Ed. 43 (1948). 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. Id. at 339, 69 S. Ct. at 89. In other words,
the statute is not to be construed such that potential litigants are forced to
become public charges or abandon their claims because of the filing fee
requirements. Id. at 339–40, 69 S. Ct. at 89…The district court must
provide a sufficient explanation for its determination on IFP status to allow
for meaningful appellate review. O'Neal v. United States, 411 F.2d 131, 138
(5th Cir. 1969); Phipps v. King, 866 F.2d 824, 825 (6th Cir. 1988); Besecker
v. State of Ill., 14 F.3d 309, 310 (7th Cir. 1994) (per curiam).
Martinez, 364 F.3d at 1307 (footnotes omitted
“A court may not deny an IFP motion without first comparing the applicant's
assets and liabilities in order to determine whether he has satisfied the poverty
requirement.” Thomas v. Chattahoochee Judicial Circuit, 574 F. App’x 916, 917 (11th
Cir. 2014) (per curiam) (unpublished) (citing Martinez, 364 F.3d at 1307-08). “The
question under 28 U.S.C. § 1915 is whether the litigant is ‘unable to pay’ the costs,
and the answer has consistently depended in part on [the] litigant’s actual ability to
get funds from a spouse, a parent, an adult sibling, or other next friend.” Williams v.
Spencer, 455 F. Supp. 205, 209 (D. Md. 1978); see Fridman v. City of New York, 195
F. Supp. 2d 534, 537 (S.D.N.Y. 2002) (“In assessing an application to proceed in forma
pauperis, a court may consider the resources that the applicant has or can get from
those who ordinarily provide the applicant with the necessities of life, such as from a
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spouse, parent, adult sibling or other next friend. … If it appears that an applicant’s
access to court has not been blocked by his financial condition; rather that he is
merely in the position of having to weigh the financial constraints imposed if he
pursues his position against the merits of his case, then a court properly exercises its
discretion to deny the application.” (cleaned up)); Sellers v. United States, 881 F.2d
1061, 1063 (11th Cir. 1989) (per curiam) (funds “derived from family sources” are
relevant to IFP determination); Wilson v. Sargent, 313 F.3d 1315, 1319-20 (11th Cir.
2002) (per curiam) (same).3 “Federal Courts have frequently recognized that, for
purposes of determining IFP eligibility, it is appropriate to consider any support that
an IFP applicant might receive from a spouse, or from any other individual.” Ginters
v. Frazier, 2008 WL 314701, at *2 n.1 (D. Minn. Feb. 4, 2008); accord Fridman, 195
F. Supp. 2d at 537; Williams, 455 F. Supp. at 208-09; Akkaraju v. Ashcroft, 2003 WL
22232969, at *1 (N.D. Ill. Sept. 26, 2003) (“In evaluating the funds available to in
forma pauperis movants, courts may consider the income or resources of interested
persons, such as spouses and parents.” (citation omitted)).
3 Most cases considering the ability of someone else to pay these costs for a putative
pauper focus on whether those costs can be borne by a close family member—such as
a spouse, parent, an adult sibling, or other next friend. E.g., Williams, 455 F. Supp.
at 209; see also Pisano v. Astrue, 2012 WL 79188, at *2 (D. Mass. Jan. 10, 2012) (“A
number of courts have come to the same conclusion that the income and resources of
a spouse, if not other close family members as well, are relevant to the determination
of indigency under 28 U.S.C. § 1915.”) (collecting cases); but see Fridman, 195 F.
Supp. 2d at 537 (“a court may consider the resources that the applicant has or ‘can
get’ from those who ordinarily provide the applicant with the ‘necessities of life,’ such
as ‘from a spouse, parent, adult sibling or other next friend.’”).
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Upon due consideration of the representations in White’s IFP motion (Doc. 2),
which is in substantial compliance with 28 U.S.C. § 1746 and thus constitutes an
unsworn declaration made under penalty of perjury, the undersigned finds that her
motion fails to demonstrate that she is “unable to pay for the court fees and costs,
and to support and provide necessities for [her]self” because of her poverty. Martinez,
364 F.3d at 1307. White is currently unemployed, has monthly mortgage payments
of $2,200, and carries $9,953 in financial debt. However, she reports substantial
assets. White reports home equity in excess of $280,000;4 a fully owned 2019 BMW
valued at $20,000; $1,938 on hand in cash and savings; and receives $318 a month in
Supplemental Nutrition Assistance Program benefits.5 White is married with zero
dependents. Her spouse generates an income of $1,400 weekly. Based on this
information, requiring White to pay the $405 filing fee for this action will not cause
her undue hardship.6
Accordingly, White is ORDERED to pay the $405 filing fee for this civil action
to the Clerk of Court no later than June 18, 2025. Failure to do so will result in entry
4 White reports an estimated home value of $390,000 with an amount owed of
$102,000.
5 Listed colloquially as “food stamps.” See (Doc. 2, PageID.12).
6 Under 28 U.S.C. § 1914, “[t]he clerk of each district court shall require the parties
instituting any civil action, suit or proceeding in such court … to pay a filing fee of
$350,” along with “such additional fees only as are prescribed by the Judicial
Conference of the United States.” 28 U.S.C. § 1914(a)-(b). Effective December 1,
2023, the Judicial Conference prescribes an additional $55 for “for filing a civil
action, suit, or proceeding in a district court[.]” See
https://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-
schedule (last visited May 29, 2025).
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of a recommendation to the Court that White be denied leave to proceed IFP in this
action, and that this action be dismissed without prejudice sua sponte unless White
pays the filing fee within the time period for objections to the recommendation. See
Woods v. Dahlberg, 894 F.2d 187, 187 (6th Cir. 1990) (per curiam) (denial of IFP
motion is “the functional equivalent of an involuntary dismissal”); Escobedo v.
Applebees, 787 F.3d 1226, 1228 (9th Cir. 2015) (“Obviously, if an IFP application is
submitted with the complaint in lieu of the filing fee, and the application is thereafter
denied, the district court will be free to dismiss the complaint if the fee is not paid
within a reasonable time following the denial.”).
White is advised that “[a]ll persons proceeding pro se shall be bound by, and
must comply with, all Local Rules of this Court, as well as the Federal Rules of Civil
… Procedure, unless excused by Court order.” S.D. Ala. GenLR 83.5(a).7 Federal Rule
of Civil Procedure 11(a) requires that any paper filed with the Court be signed by a
pro se party personally and provide that party’s “address, e-mail address, and
telephone number.”8 See also S.D. Ala. GenLR 5(a)(4) (“For filings by pro se litigants,
the unrepresented party shall personally sign each document filed and shall include,
directly beneath the signature line, his or her name, address and telephone
number.”). Under this Court’s local rules, “[a]ny person proceeding pro se must, at all
7 The Court’s Local Rules and Standing Orders may be read on the Court’s website
at: https://www.alsd.uscourts.gov/rules-and-orders
8 “The court must strike an unsigned paper unless the omission is promptly corrected
after being called to the attorney's or party's attention.” Fed. R. Civ. P. 11(a).
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times during the pendency of the action to which he or she is a party, keep the Clerk
informed of his or her current address and … must promptly notify the Clerk of any
change of address … Failure to comply with this Rule may result in sanction,
including dismissal of a pro se plaintiff’s action…” S.D. Ala. GenLR 83.5(b).
Additionally, any “request for Court action must be presented by motion and may not
be presented by informal means such as a letter.” S.D. Ala. GenLR 7.
White is encouraged to review the resources available on the Court’s website
for those individual proceeding without an attorney
(https://www.alsd.uscourts.gov/filing-without-attorney).
DONE and ORDERED this the 29th day of May 2025.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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