BRINIS FERNANDEZ

v.

COLOMBO

THIS CAUSE is before the Court upon Plaintiff Juan C. Brinis Fernandez’s (“Plaintiff”) Implied Motion to Proceed In Forma Pauperis, ECF No. (“Motion”).

The Court has carefully considered the Motion and the record in this case, and is otherwise fully advised. For the reasons set forth below, Plaintiff’s Motion is denied without prejudice. Plaintiff, a pro se litigant, has not paid the required filing fee and has impliedly moved to proceed in forma pauperis. ECF No. . Fundamental to our system of justice is that the courthouse doors will not be closed to persons based on their inability to pay a filing fee. Congress has provided that a court “may authorize the commencement, prosecution, or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees . . . therefore, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees. . . .” 28 U.S.C. § 1915(a)(1); see Martinez v. Kristi Kleaners, Inc., 364 F. 3d 1305, 1306 n.1 (11th Cir. 2004) (interpreting statute to apply to all persons seeking to proceed in forma pauperis).

Section 1915(a) requires a determination as to whether “the statements in the [applicant’s] affidavit satisfy the requirement of poverty.” Watson v. Ault, 525 F. 2d 886, 891 (5th Cir. 1976).1 An applicant’s “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.” Martinez, 364 F. 3d at 1307; see also Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (In forma pauperis status is demonstrated when, because of poverty, one cannot “pay or give security for the costs and still be able to provide himself and dependents with the necessities of life.”).

The Department of Health and Human Services (HHS) poverty guidelines are central to an assessment of an applicant’s poverty. See Taylor v. Supreme Court of New Jersey, 261 F. App’x 399, 401 (3d Cir. 2008) (using HHS Guidelines as basis for section 1915 determination); Lewis v. Ctr. Mkt., 378 F. App’x 780, 784 (10th Cir. 2010) (affirming use of HHS guidelines); see also Annual Update of the HHS Poverty Guidelines, 85 Fed. Reg. 3060 (Jan. 17, 2020).

Further, the section 1915 analysis requires “comparing the applicant’s assets and liabilities in order to determine whether he has satisfied the poverty requirement.” Thomas v. Chattahoochee Judicial Circuit, 574 F. App’x 916, 917 (11th

Cir. 2014). Ultimately, permission to proceed in forma pauperis is committed to the sound discretion of the Court. Camp v. Oliver, 798 F. 2d 434, 437 (11th Cir. 1986) (“[P]ermission to proceed [IFP] is committed to the sound discretion of the court.”). The Court is unable to determine from Plaintiff’s Motion whether he satisfies the requirements of poverty because the application is incomplete. In particular, Plaintiff has not submitted “an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). Thus, the Court cannot determine whether Plaintiff qualifies as indigent under § 1915 based on the Motion.

Accordingly, it is ORDERED AND ADJUDGED as follows: 1. Plaintiff's Implied Motion to Proceed In Forma Pauperis, ECF No. , is

DENIED WITHOUT PREJUDICE.

2. Plaintiff must re-submit the Application to Proceed In Forma Pauperis, along with all required documentation or pay the required filing fee by no later than February 24, 2020. Failure to comply with this Order will result in dismissal without prejudice and without further notice. DONE AND ORDERED in Chambers at Miami, Florida, on February 10, 2020.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to: Juan C. Brinis Fernandez 190145117 Metro West Detention Center 13850 NW 41 Street Miami, FL 33178