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Willie Council v. U.S. Navy

United States District Court, E.D. North Carolina, Western Division

March 14, 2019

WILLIE COUNCIL, Representative for Jacqueline E. Council, Deceased Wife, Plaintiff,
v.
U.S. NAVY, CAMP LEJEUNE, NC, and WASHINGTON, D.C., Defendants.

          MEMORANDUM AND RECOMMENDATION

          JAMES E. GATES UNITED STATES MAGISTRATE.

         This pro se case is before the court on the application to proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) (D.E. 1), dated 8 February 2019, by plaintiff Willie Council, as Representative for Jacqueline E. Council, Deceased Wife (“plaintiff”), and for a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B). These matters were referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B). See Public D.E. dated 13 Mar. 2019.

         The court interprets the application as indicating that plaintiff had average monthly income over the past year of $4, 950.00, comprised of $975.00 in retirement benefits and $3, 995.00 in veterans benefits. See App'n 2. While the application literally lists “$49, 500” as the monthly average, the court deems this to be an error in form. Id.

         The court also deems an error in form the listing of “$47, 700” as the monthly average income from employment. Id. at 1. Rather, this sum, which is accompanied by the notation “(VA), ” appears to represent the annualized amount of veterans benefits at $3, 995 per month. Id. at 1. This interpretation is substantiated by plaintiff's repeated representation in the application that he is unemployed and unemployable. See Id. at 2 ¶¶ 2, 4.

         The court further finds plaintiff to be reporting the same figure of $4, 950 as his expected income for the “next month, ” 8 February to 8 March 2019, also comprised of $975.00 in retirement benefits and $3, 995.00 in veterans benefits. Id. at 2. The literal figure he listed was “$49, 500, ” as he did with the past year's average monthly income, but the court, again, deems this to be an error in form.

         Plaintiff listed expected income from employment for the “next month” of $3, 995. Id. at 1. The court deems this figure, which is accompanied by the notation “VA, ” to be duplicative of the expected monthly amount of veterans benefits set out later. See Id. at 1, 2. As with the court's resolution of all the other apparent discrepancies in the figures reported by plaintiff, this resolution favored him by lowering the amount of income that would otherwise be counted.

         Plaintiff reports monthly expenses of $2, 400. Id. at 2. His monthly income-for both the past year and “next month”-therefore exceeds his expenses by $2, 550.

         Based on this amount of monthly income in excess of expenses, the court finds that plaintiff has not adequately demonstrated the inability to pay the required court costs. Accordingly, it is RECOMMENDED that plaintiff's application be DENIED.

         It is DIRECTED that a copy of this Memorandum and Recommendation be served on plaintiff or, if represented, his counsel. Plaintiff shall have until 28 March 2019 to file written objections to this Memorandum and Recommendation. The presiding Chief District Judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules); 72.4(b), E.D. N.C. [1]

         If plaintiff does not file written objections by the foregoing deadline, 28 March 2019, plaintiff will be giving up the right to review of the Memorandum and Recommendation by the presiding District Judge as described above, and the presiding Chief District Judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, plaintiffs failure to file written objections by the foregoing deadline will bar plaintiff from appealing to the Court of Appeals from an order or judgment of the presiding District Judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).

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Notes:

[1] See also Local Civil Rule 3.2 (E.D.N.C). Subject to modification by order of the court, this rule provides:

In all civil actions in which the court denies the plaintiff's [application] to proceed in forma pauperis, the plaintiff shall be allowed 30 days to pay the requisite filing fee. If the plaintiff fails to pay the filing fee, the clerk shall re-designate the action as a miscellaneous ...

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