United States District Court, M.D. Pennsylvania
ANDREW J. OSTROWSKI d/b/a PENNSYLVANIA RIGHTS LAW NETWORK, Plaintiff,
AMERICAN SYSTEM OF JUSTICE, et al., Defendants.
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE
the court is a July 24, 2017 Report and Recommendation of
Magistrate Judge Joseph F. Saporito, Jr. (Doc. 15).
Judge Saporitorecommends that the plaintiff's action,
in this case his amended complaint, (Doc. 6), be
dismissed without prejudice for failure to pay the requisite
filing and administrative fees. On August 8, 2017, the
plaintiff filed objections to Judge Saporito's report,
along with a brief in support. (Docs.
16-17). Based on the following discussion,
Judge Saporito's report will be ADOPTED IN
ITS ENTIRETY and the
plaintiff's amended complaint will be DISMISSED
3, 3017, the plaintiff filed a pro se civil
complaint in this court along with a typed motion for leave
to proceed in forma pauperis (“IFP”)
which did not provide any of the plaintiff's financial
information. (Docs. 1-2). On May 9, 2017,
Judge Saporito denied the plaintiff's motion and provided
the plaintiff with an IFP application form that solicits
financial information from litigants seeking to avoid the
normal $400.00 filing and administrative fee. Instead of
completing this form, on June 6, 2017, the plaintiff filed an
amended complaint along with a second, typed motion for
leave to proceed IFP. (Docs. 6-7). In this
second set of filings, the plaintiff added the
“issue” of the constitutionality of the
requirement of fees, (Doc. 7 ¶1), perhaps
believing that this would obviate the need to complete the
court's IFP application form.
7, 2017, Judge Saporito denied the plaintiff's IFP motion
a second time and instructed the plaintiff to either pay the
filing fee or complete the IFP application form within
fourteen (14) days. (Doc. 8). Instead of complying
with Judge Saporito's June 7, 2017 Order, on June 20,
2017, the plaintiff appealed the Order and attempted to raise
the constitutionality of the IFP statute and the requirement
of fees in his appeal, an issue forming part of the basis of
his amended complaint. (Doc. 9). In essence, the
plaintiff's appeal was an attempt to have this court
directly address both his amended complaint and second, typed
motion to proceed IFP despite his failure to comply with
Judge Saporito's directive to complete the court's
IFP application form. Although the plaintiff vigorously
asserted his constitutional right to file without paying fees
in his appeal, the plaintiff also filed a declaration with
his appeal, (Doc. 11), indicating the following
I have less than $500 in my checking account, $5 in a savings
account, approximately $200 cash on hand, monthly living
expenses of approximately $1200, and revenues (gifts,
donations, compensation) on average of approximately
$1200-$1500 or so per month. I own a car worth very little
(maybe a thousand dollars, but has not been shopped), and
asserted “debts” exceeding $100, 000.
this information did not provide the itemized information
required by the court's IFP application form.
(Compare Doc. 5-1, with Doc.
6, 2016, the court issued an order and memorandum affirming
Judge Saporito's June 7, 2017 Order and denying the
plaintiff's appeal as frivolous and premature. (Docs.
13-14). In reaching this decision, the
court noted that Judge Saporito had not reached the substance
of the plaintiff's request to proceed IFP and had solely
required a completed form. The court also explained to the
plaintiff that Judge Saporito's reliance on 28 U.S.C.
§1915 (the “IFP statute”) was proper even
though the plaintiff was not a prisoner. The court also
reminded the plaintiff that the right to proceed IFP in a
civil case is a privilege, not a constitutional right,
Shahin v. Sec'y of Del., 532 F. App'x 123
(3d Cir. 2013) (per curiam), and as such, it is
subject to limitations, Abdul-Akbar v. McKelvie, 239
F.3d 307, 316 (3d Cir. 2001). The court granted the plaintiff
an additional seven (7) days to comply with Judge
Saporito's Order and remanded for further proceedings.
apparent act of defiance, the plaintiff did not complete the
court's IFP form. Naturally, on July 24, 2017, Judge
Saporito issued the current report recommending that the
plaintiff's action be dismissed without prejudice for
failure to pay the requisite filing and administrative fee.
The plaintiff objects, raising four alternative arguments,
two of which are based on constitutional grounds. None of
these arguments have any merit and will be overruled.
STANDARD OF REVIEW
objections are timely filed to the report and recommendation
of a magistrate judge, the district court must review those
portions of the report to which objections are made de
novo. 28 U.S.C. §636(b)(1); Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011). The
extent of review, however, is committed to the sound
discretion of the district judge, and the court may rely on
the recommendations of the magistrate judge to the extent it
deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499
(M.D. Pa. 2000) (citing United States v.
Raddatz, 447 U.S. 667, 676 (1980)).
those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good
practice, "satisfy itself that there is no clear error
on the face of the record in order to accept the
recommendation." Fed. R. Civ. P. 72(b),
advisory committee notes; see also Univac Dental Co. v.
Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D. Pa.
2010) (citing Henderson v. Carlson, 812 F.2d 874,
878 (3d Cir. 1987)) (explaining that judges should give some
review to every report and recommendation). Nevertheless,
whether timely objections are made or not, the district court
may accept, not accept, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.
28 U.S.C. §636(b)(1); Local Rule 72.3.