Evelyn Martinez v. Kristi Kleaners, Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 2, 2004
No. 02-16019 THOMAS K. KAHN
________________________ CLERK

D.C. Docket No. 02-80933-CV-DTKH

EVELYN MARTINEZ,

Plaintiff-Appellant,

versus

KRISTI KLEANERS, INC.,
Kristi Kleaner’s, Inc.,
d.b.a. Kristi Kleaners,
a.k.a. Kristi Kleaners,
Defendant-Appellee.

__________________________

Appeal from the United States District Court for the
Southern District of Florida
_________________________

(April 2, 2004)

Before BIRCH, KRAVITCH and FARRIS*, Circuit Judges.

PER CURIAM:

*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
 Evelyn Martinez filed a pro se civil rights suit, alleging employment

discrimination, under Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. § 2000e-2. R1-2. Martinez’s complaint was accompanied by a motion for

leave to proceed in forma pauperis (“IFP”), pursuant to 28 U.S.C. § 1915.1 R1-1.

The district court denied Martinez’s motion for leave to proceed IFP without

explanation. Martinez appealed the district court’s ruling, and sought leave to

proceed IFP on appeal. The district court denied Martinez leave to proceed on appeal

IFP, and dismissed her complaint without prejudice based on her failure to pay the

filing fees and timely perfect service on the defendant. We granted Martinez leave

to proceed on appeal IFP, finding that the financial affidavit submitted by Martinez

to the district court showed only her assets and did not indicate her monthly financial

obligations. We hold that the district court abused its discretion by denying

1
The provisions of 28 U.S.C. § 1915(a)(1) state:

[A]ny court of the United States may authorize the commencement,
prosecution or defense of any suit, action or proceeding, civil or
criminal, or appeal therein, without prepayment of fees or security
therefor, by a person who submits an affidavit that includes a
statement of all assets such prisoner possesses [and] that the person
is unable to pay such fees or give security therefor. Such affidavit
shall state the nature of the action, defense or appeal and affiant’s
belief that the person is entitled to redress.

Despite the statute’s use of the phrase “prisoner possesses,” the affidavit requirement applies to all
persons requesting leave to proceed IFP. Hayes v. Scott, 116 F.3d 137, 140 (5th Cir. 1997), Floyd
v. United States Postal Serv., 105 F.3d 274, 275 (6th Cir. 1997).

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Martinez’s motion, and vacate and remand with instructions.

We review a district court’s denial of a motion for leave to proceed IFP under

§ 1915 for abuse of discretion. Matthews v. Gaither, 902 F.2d 877, 879 (11th Cir.

1990) (per curiam). We have observed that

a trial court has wide discretion in denying an application to proceed IFP
under 28 U.S.C. § 1915. This is especially true, the rubric goes, in civil
cases for damages, wherein the courts should grant the privilege
sparingly. However, in denying such applications a court must not act
arbitrarily. Nor may it deny the application on erroneous grounds.

Flowers v. Turbine Support Div., 507 F.2d 1242, 1244 (5th Cir. 1975)2 (internal

citations omitted); see also Pace v. Evans, 709 F.2d 1428, 1429 (11th Cir. 1983) (per

curiam).

When considering a motion filed pursuant to § 1915(a), “[t]he only

determination to be made by the court . . . is whether the statements in the affidavit

satisfy the requirement of poverty.”3 Watson v. Ault, 525 F.2d 886, 891 (11th Cir.

1976). An affidavit addressing the statutory language should be accepted by the

court, absent a serious misrepresentation, and need not show that the litigant is

2
In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to 1 October
1981.
3
We note, however, that a court’s consideration of a party’s ability to pay for costs and
attorney’s fees is not limited by the party’s application for leave to proceed in forma pauperis, and
that the court may “look beyond the . . . application . . . to determine his financial condition.”
Durrett v. Jenkins Brickyard, Inc., 678 F.2d 911, 917 (11th Cir. 1982).

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“absolutely destitute” to qualify for indigent status under § 1915. Adkins v. E.I.

DuPont de Nemours & Co., 335 U.S. 331, 338-40, 69 S. Ct. 85, 88-89 (1948). Such

an affidavit will be held sufficient if it represents 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 dependents.4 Id. at 339, 69 S. Ct. at 89. In other

words, the statute is not to be construed such that potential litigants are forced to

become public charges or abandon their claims because of the filing fee requirements.

Id. at 339-40, 69 S. Ct. at 89. “[W]here the [IFP] affidavit is sufficient on its face to

demonstrate economic eligibility, the court should first docket the case and then

proceed to the question . . . of whether the asserted claim is frivolous.” Watson, 525

F.2d at 891. The district court must provide a sufficient explanation for its

determination on IFP status to allow for meaningful appellate review. O’Neal v.

United States, 411 F.2d 131, 138 (5th Cir. 1969); Phipps v. King, 866 F.2d 824, 825

(6th Cir. 1988); Besecker v. State of Ill., 14 F.3d 309, 310 (7th Cir. 1994) (per

curiam).

Martinez’s motion for leave to proceed in forma pauperis was on a form

provided by the Clerk of the Southern District of Florida to move for leave to proceed

4
The filing fee to institute a civil action in the United States District Court is $150. 28
U.S.C. § 1914(a).

4
IFP, and included an affidavit in support of the motion. R1-1. The affidavit includes

a statement in which Martinez swore that “because of my poverty I am unable to pay

the costs of said proceeding or to give security therefor.” Id. The form then provides

questions to the movant regarding: (1) employment and any income from his or her

employer; (2) income from a business, profession, other self-employment, rent,

interest, dividends or other sources; (3) cash and checking or savings accounts; (4)

investments, including real estate, vehicles and other property; and (5) any

dependents. Id. The form does not question the movant regarding liabilities and

expenses. Martinez completed the form, and listed $880 per month employment

income, $300 in cash or bank accounts, a $400 vehicle, and no dependents.5 Based

on Martinez’s sworn statement that she was a pauper and was unable to pay the court

costs, the affidavit was “sufficient on its face to demonstrate economic eligibility” for

in forma pauperis status. Because the affidavit did not provide a section for liabilities

and Martinez did not supplement the affidavit with that information, the district court

was unable to compare Martinez’s assets with her liabilities in order to determine

5
According to the United States Department of Health and Human Services, the poverty
level for 2002 for a single person with no dependents was $8,860 per year or $783.33 per month.
Therefore, Martinez was above the poverty line and not “absolutely destitute.” See Adkins, 335 U.S.
at 339, 69 S. Ct. at 89.

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whether she satisfied the poverty requirement.6 Further, because the district court’s

order contained no explanation as to why Martinez’s motion was denied, it is unclear

whether the denial was based on her failure to satisfy the poverty requirement or

because her complaint was frivolous.

Therefore, we vacate the district court’s order and remand with instructions.

If the district court finds that Martinez’s affidavit is insufficient to provide an

adequate basis for an IFP determination, Martinez should be directed to file a

supplemental affidavit providing additional information, including her liabilities,

which may assist the court in its ruling. If the district court determines that Martinez

is not eligible to proceed in forma pauperis, the reasons for that denial should be

explained in its order. Alternatively, should the district court find the complaint

6
The form in use by the Southern District of Florida for seeking leave to proceed in forma
pauperis, S.D. Fla. General Civil Case Filing Requirements, Appendix I (Feb. 2003), requests
basically the same information found on the motion and affidavit form used by Martinez. We note
that other courts, including the Northern District of Georgia, use a form which also requests
information regarding the movant or household member’s receipt of “money from any sources not
otherwise disclosed,” “a list of all debts and monthly household bills,” and any “additional
information” which could assist the court in its ruling. N.D. Ga., Forms, Affidavit in Support of
Request to Proceed In Forma Pauperis. See also Fed.R. App. P., Appendix of Forms, Form 4 (which
provides for information regarding the movant’s income sources, monies on hand, assets,
dependents, debts owed the movant, expenses of the movant, expected changes to income or
expenses, assets or liabilities, costs incurred in conjunction with the case, “any other information,”
and contact information for the movant, including the movant’s age, education, and Social Security
number).

6
frivolous, it should affirmatively indicate that conclusion for our benefit on review. 7

VACATED AND REMANDED.

7
If the district court finds that Martinez’s complaint is frivolous, it should provide Martinez
with an opportunity to amend her complaint before dismissing the action on that basis. See O’Neal,
411 F.2d at 138; Pace, 709 F.2d at 1439; Besecker, 14 F.3d at 310.

7