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Ostrowski v. American System of Justice

United States District Court, M.D. Pennsylvania

September 18, 2017

ANDREW J. OSTROWSKI d/b/a PENNSYLVANIA RIGHTS LAW NETWORK, Plaintiff,
v.
AMERICAN SYSTEM OF JUSTICE, et al., Defendants.

          SAPORITO, M.J.

          MEMORANDUM

          MALACHY E. MANNION UNITED STATES DISTRICT JUDGE

         Before the court is a July 24, 2017 Report and Recommendation of Magistrate Judge Joseph F. Saporito, Jr. (Doc. 15). Judge Saporito[1]recommends 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 WITHOUT PREJUDICE.

         I. BACKGROUND

         On May 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[2] 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.

         On June 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 financials:

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.

         Notable, this information did not provide the itemized information required by the court's IFP application form. (Compare Doc. 5-1, with Doc. 11).

         On July 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.

         In an 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.

         II. STANDARD OF REVIEW

         When 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)).

         For 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.

         III. ...


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