United States District Court, E.D. Tennessee, Greeneville
ORDER ON APPLICATION TO PROCEED WITHOUT PREPAYMENT OF
FEES AND ORDER REPORT AND RECOMMENDATION
CLIFTON L. CORKER UNITED STATES MAGISTRATE JUDGE
Angel Wilcox has filed a Motion [Doc. 1] to proceed in
forma pauperis. The Motion is before the United States
Magistrate Judge pursuant to 28 U.S.C. § 636, and the
standing orders of this Court. Ms. Wilcox is representing
herself in this action.
purpose of 28 U.S.C. § 1915 is to ensure that indigent
litigants have meaningful access to the courts. Adkins v.
E.I. DuPont de Nemours & Co., 335 U.S. 331, 342, 69
S.Ct. 85 (1948); Neitzke v. Williams, 490 U.S. 319,
324, 109 S.Ct. 1827 (1989). The statute therefore allows a
litigant to commence a civil or criminal action in federal
court without paying the administrative costs of the lawsuit.
Denton v. Hernandez, 504 U.S. 25, 27, 112 S.Ct. 1728
Court's review of an in forma pauperis
application is normally based solely on the affidavit of
indigence. See Gibson v. R.G. Smith Co., 915 F.2d
260, 262-63 (6th Cir. 1990). The threshold requirement which
must be met in order to proceed in forma pauperis is
that the petitioner show, by affidavit, the inability to pay
court fees and costs. 28 U.S.C. §1915(a). However, one
need not be absolutely destitute to enjoy the benefit of
proceeding in forma pauperis. Adkins, 335
U.S. at 342, 69 S.Ct. at 90. An affidavit to proceed in
forma pauperis is sufficient if its states that the
petitioner cannot, because of poverty, afford to pay for the
costs of litigation and still pay for the necessities of
life. Id. at 339, 69 S.Ct. at 89. The decision to
grant or deny such an application lies within the sound
discretion of the Court. Phipps v. King, 866 F.2d
824, 825 (6th Cir. 1988).
present case, the petitioner's Application to Proceed
Without Prepayment of Fees and petitioner's economic
status have been considered in making the decision of whether
to grant leave to proceed in forma pauperis. The
application sets forth grounds for so proceeding. The
Application to Proceed Without Prepayment of Fees [Doc. 1],
therefore, is GRANTED.
Clerk is DIRECTED to file the complaint
without prepayment of costs or fees. Gibson, 915
F.2d at 262-63; see Harris v. Johnson, 784 F.2d 222
(6th Cir. 1986). The Clerk shall not issue process, however
at this time.
to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii), the district
court may dismiss a complaint as frivolous or if it fails to
state a claim upon which relief can be granted. See also
Neitzke, 490 U.S. 319, 109 S.Ct. 1827. Plaintiff filed
this complaint on February 12, 2019 on behalf of her brother,
Danny Wilcox, an inmate at FCI Beckley [Doc. 2]. Plaintiff
specifically alleges that Defendant mentally and physically
abused her brother, including threatening physical violence.
As relief, Plaintiff asks for the Court to order Defendant to
“treat inmates with respect, ” move Mr. Wilcox to
another prison for the remainder of his sentence, and to hold
Defendant employees responsible for their actions
[Id. at pg. 3].
order for Plaintiff to have standing to bring a suit, she
must show that she “suffered ‘an invasion of a
legally protected interest' that is ‘concrete and
particularized' and ‘actual or imminent, not
conjectural or hypothetical.'” Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1548 (2016) (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). As
relevant here, “[f]or an injury to be particularized,
it must affect the plaintiff in a personal and individual
way.” Spokeo, Inc., 136 S.Ct. at 1548 (quoting
Lujan, 504 U.S. at 560, n. 1)). However, Plaintiff
does not give any basis for standing in bringing this lawsuit
on behalf of her brother. She does not allege to be his
guardian nor does she allege to have power of attorney on his
behalf. She is not bringing a wrongful death suit as his
personal representative or next of kin. She gives no
indication of any sort of ability to be a third party
representative for him in this case. Plaintiff has no
“personal stake” in this claim. See Baker v.
Carr, 369 U.S. 186, 204 (1962). Therefore, the Court
finds that Plaintiff does not have standing to bring this
Court also notes that Plaintiff resides in Johnson City,
Tennessee and Defendant is located in Beckley, West Virginia.
However, as Plaintiff does not allege any monetary damages,
she does not satisfy the requirements for diversity of
citizenship under 28 U.S.C. § 1332(a). Plaintiff also
does not claim any federal statute under which she seeks
relief. The undersigned finds that this Court lacks
jurisdiction over the subject matter of the suit.
it is RECOMMENDED that the Complaint be
DISMISSED under 28 U.S.C. § 1915(e) for
failure to state a federal claim upon which relief can be
granted, but without prejudice to the Plaintiff's rights
to re-file in the appropriate court. This Complaint lacks any
arguable basis for a recovery in this Federal Court due to
lack of standing and jurisdiction. Neitzke, 490 U.S.
319, 109 S.Ct. 1827.
matter is to be presented to the District Judge pursuant to
this Report and Recommendation under the authority of
Gibson v. R.G. Smith Co., 195 F.2d at 263, wherein
the Court states that such matters proceed automatically to a
district judge for examination of the complaint after a
magistrate judge has granted the petition to proceed in