Russoniello v. Laboratory Corporation of America Holdings

6:09-cv-00301 | M.D. Fla. | Mar 2, 2009

U NITED S TATES D ISTRICT C OURT

M IDDLE D ISTRICT OF F LORIDA O RLANDO D IVISION JOSEPH P. RUSSONIELLO, Plaintiff, -vs- Case No. 6:09-cv-301-Orl-18KRS LABORATORY CORPORATION OF AMERICA HOLDINGS,

Defendant. ______________________________________ R EPORT A ND R ECOMMENDATION TO THE UNITED STATES DISTRICT COURT This cause came on for consideration without oral argument on the following motion: MOTION: MOTION TO PROCEED IN FORMA PAUPERIS (Doc. Nos. 2, 4) FILED: February 26, 2009 On February 17, 2009, Plaintiff filed his first affidavit of indigency. Doc. No. 2. Plaintiff’s affidavit reflected that he has approximately $200,000.00 worth of equity in his home, $1,200.00 in cash in checking or savings accounts, and $1,427.00 in monthly income. Plaintiff did not aver that he has any debts or monthly payments, and does not list the monthly amounts he uses to support his granddaughter or wife.

In an abundance of caution, the Court ordered Plaintiff to file a supplemental affidavit showing the monthly expenses for debt payments and necessities for himself, his wife, and any dependents. Doc. No. 3. On February 26, 2009, Plaintiff filed a supplemental affidavit reflecting that he has approximately $200,00.00 worth of equity in his home, $1,200.00 in cash in checking or savings accounts, and $1,427.00 in monthly income. Plaintiff attached an addendum reflecting a $679.00 mortgage, $500.00 for food, and $120.00 in utilities for a total of $1,299.00 in monthly expenses, a surplus of $128.00. He indicated that he would not have submitted the motion if the Clerk of Court would accept payment of the filing fee by credit card. Doc. No. 4 at 4.

Because of the significant equity in Plaintiff’s home accompanied by the monthly surplus in income and Plaintiff’s statement that his submission of an affidavit of indigency is based, in part, on unavailability of a credit card fee prepayment option, I find that the affidavit submitted in support of Plaintiff’s motion for leave to proceed in forma pauperis fails to establish “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 dependants.” Martinez v. Kristi Kleaners, Inc. , 364 F.3d 1305" date_filed="2004-04-02" court="11th Cir." case_name="Evelyn Martinez v. Kristi Kleaners, Inc.">364 F.3d 1305, 1307 (11th Cir. 2004).

Therefore, I respectfully recommended that Plaintiff’s motion for leave to proceed in forma pauperis be DENIED and that, if the required filing fee is not paid within eleven (11) days from the date of any order adopting this Report and Recommendation, the case be dismissed.

Failure to file written objections to the proposed findings and recommendations contained in this report within ten (10) days from the date of its filing shall bar an aggrieved party from attacking the factual findings on appeal.

Recommended in Orlando, Florida on March 2, 2009. Karla R. Spaulding

KARLA R. SPAULDING

UNITED STATES MAGISTRATE JUDGE

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