United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER ACCEPTING THE REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE AND DENYING
PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS
C. GUADERRAMA UNITED STATES DISTRICT JUDGE
Eddie Lee Fryer, federal prisoner number 01029-424, moves to
proceed, without prepaying costs or fees, with a complaint
under the Federal Tort Claims Act. Mot. to Appeal IFP, ECF
United States Magistrate Judge to whom the Court referred
this matter recommends that the Court deny Fryer's
motion. R. &. R. 1, ECF No. 7. See 28 U.S.C.
§ 636(b)(1)(B) (permitting a district court, on its own
motion, to refer a pending matter to a United States
Magistrate Judge for a report and recommendation). She
reasons that Fryer has enough money in his inmate trust
account to pay the $400 filing lee:
Based upon a six-month average balance of $2, 268.22, the
Court finds that Fryer does not qualify to proceed in
forma pauperis. Pursuant to [28 U.S.C] § 1915(b),
twenty percent of Fryer's six month average balance would
be $453.64, while the required filing fee for commencing an
action in federal court is $400.00. Fryer therefore has
sufficient assets to pay the required filing fee and does not
qualify to proceed in forma pauperis.
R. &R. 2-3, ECF No. 7.
Magistrate Judge allowed Fryer fourteen days to file written
objections to her proposed findings, conclusions, and
recommendations. Id. at 3; see also 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). A party who
files timely written objections to a magistrate judge's
report is entitled to a "de novo" review of those
portions of the report to which the party objects. 28 U.S.C.
§ 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3). As to other
portions of the report or when a party does not file written
objections, the Court applies a "clearly erroneous,
abuse of discretion and contrary to law" standard of
review. See United States v. Wilson, 864
F.2d 1219, 1221 (5th Cir. 1989). After completing its review,
the Court may accept, reject, or modify a report, in whole or
in part. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b).
timely objects "to the proposed findings, conclusions
and recommendations." Pl.'s Obj. 1, ECF No. 10. He
explains that he saved most of the money in his account for
use upon his release from prison:
As for me having enough money available to pay the filing
fees, that is incorrect. Yes, at the time of me filling my
motion there was $2, 231.05 on my inmate account. On page 1
of the inmate account printout it will show that $1, 862.25
was in my Pre-Release Balance and on page 2 of the same
report it will show that $297.70 is my Available Balance. ...
Honor Court, I am asking you to have mercy on me and allow me
to proceed in forma pauperis. It took me over 29
years to place this money in my Pre-Release account. So that
when I'm released, I will have some funds to get started
with my new life. My release date is November 19, 2036 and
I'll be 78 years old. The printout of my inmate account
indicates that I do not have enough funds available to pay
Id. Fryer apparently believes the Court may allow
him to proceed without making any payment for his lawsuit.
the Court is sympathetic to Fryer's situation, it notes
that the Prison Litigation Reform Act provides that prisoners
qualified to proceed in forma pauperis shall still
"be required to pay the full amount of a filing
fee." 28 U.S.C. § 1915(b)(1). The Act explains that
"[t]he court shall assess and, when funds exist,
collect, as a partial payment of any court fees required by
law, an initial partial filing fee of 20 percent of the
greater of the average monthly deposits in the prisoner's
account or the average monthly balance of the account over
the preceding six months. Id. The Act adds that the
prisoner income credited to the prisoner's account."
Id. § 1915(b)(2).
Magistrate Judge correctly calculates that "twenty
percent of Fryer's six month average balance would be
$453.64." R. & R. 2-3, ECF No. 7. Hence, Fryer's
"initial partial filing fee" would be enough to
cover the required filing fee of $400 for commencing his
action in federal court.
the Court concludes that it should overrule Fryer's
objection and accept the Magistrate Judge's
recommendation. Accordingly, the Court enters the following
IS ORDERED that Plaintiff Eddie Lee Fryer's
objection to the report and recommendation of ...