ALAN KONECNY v. CORE MARK HOLDINGS CO INC PFG (2025)

ORDER

Plaintiff J. Alan Konecny filed a motion to proceed in forma pauperis. Dkt. 2. The statute authorizing the court to grant a litigant leave to proceed in that manner states:

Subject to subsection (b), any 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 [person] possesses 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.

28 U.S.C. § 1915(a)(1). “The mere execution of an affidavit of indigence does not automatically entitle a litigant to proceed in forma pauperis. Rather, the court enjoys limited discretion to grant or deny a motion for leave to proceed in forma pauperis based upon the financial statement set forth within the applicant's affidavit.” Heath v. IRS, No. 3-02-CV-1518-H, 2002 WL 31086069, at *1 (N.D. Tex. Sept. 16, 2002) (citing Adkins v. E.I. Du Pont De Nemours & Co., Inc., 335 U.S. 331, 337 (1948)). A plaintiff who wants to proceed in forma pauperis must file an affidavit attesting to his or her indigence. See 28 U.S.C. § 1915(a)(1). “The affidavit is sufficient if it states that, due to poverty, plaintiff cannot afford to pay the costs of legal representation and still provide for himself and his dependents.” Bright v. Hickman, 96 F. Supp. 2d 572, 575 (E.D. Tex. 2000). “While plaintiff does not need to be absolutely destitute to qualify for in forma pauperis status, such benefit is allowed only when plaintiff cannot give such costs and remain able to provide for himself and his dependents.” Id. (citations omitted).

Konecny's motion does not include a statement describing his financial situation that would support his request to proceed in forma pauperis. Instead, he states that his only source of income is his United States Department of Veterans Affairs (“VA”) “disability compensation due to his service-connected disabilities.” Dkt. 2 at 2. He argues that 38 U.S.C. § 5301 prevents the court from considering his veterans' benefits in assessing his ability to pay litigation costs. He is mistaken.

“While Section 5301(a) does protect federal benefit payments from ‘attachment, levy, or seizure,’ nothing in the statute suggests (1) that recipients of benefits are exempt from statutory filing fee requirements; or (2) that assets acquired from VA benefits cannot be taken into account for purposes of determining whether a litigant is eligible for in forma pauperis status.” Hawes v. Stephens, 964 F.3d 412, 417 (5th Cir. 2020).

It is ORDERED that the motion, Dkt. 2, is DENIED WITHOUT PREJUDICE.

It is further ORDERED that, within 30 days of receipt of this order, the plaintiff shall either pay the filing fee or submit another application to proceed in forma pauperis correcting the deficiencies identified above. Failure to comply with this order may result in dismissal of the complaint.

So ORDERED and SIGNED this 17th day of February, 2025.

Bill Davis United States Magistrate Judge