United States District Court, E.D. North Carolina, Western Division
WILLIE COUNCIL, Representative for Jacqueline E. Council, Deceased Wife, Plaintiff,
U.S. NAVY, CAMP LEJEUNE, NC, and WASHINGTON, D.C., Defendants.
MEMORANDUM AND RECOMMENDATION
E. GATES UNITED STATES MAGISTRATE.
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.
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.
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.
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.
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.
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.
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.
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. 
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).
 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