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Corum v. Commissioner of Social Security Administration

United States District Court, W.D. Oklahoma

January 17, 2018

MELISSA CORUM, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff has filed an Application to Proceed in District Court without Prepaying Fees or Costs. Doc. 2. This matter has been assigned to the undersigned Magistrate Judge consistent with General Order 16-4.

         The filing fee in civil cases is presently $400.00.[1] Pursuant to 28 U.S.C. § 1915(a), a district court has discretion to permit the commencement of an action without prepayment of fees or security therefor. See Cabrera v. Horgas, No. 98-4231, 1999 WL 241783 at *1 (10th Cir. 1999) (“The decision to grant or deny in forma pauperis [IFP] status under § 1915 lies within the sound discretion of the trial court.”). “Section 1915(a) applies to all persons applying for IFP status, and not just to prisoners.” Lister v. Dep't of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005).

         Proceeding IFP “in a civil case is a privilege, not a right - fundamental or otherwise.” White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998). To succeed on a motion to proceed IFP, the movant must show a financial inability to pay the required filing fees. Lister, 408 F.3d at 1312. Factors the court may consider in exercising its discretion include: “whether the complaint is frivolous or malicious; whether the case concerns a prisoner, with special concern placed on prisoner complaints; and the nature of the mandatory and discretionary demands on the applicant's financial resources.” Brewer v. City of Overland Park Police Dep't, 24 Fed.Appx. 977, 979 (10th Cir. 2002) (citations omitted).

         The court evaluates “an application to proceed [IFP] . . . in light of the applicant's present financial status.” Scherer v. Kansas, 263 Fed.Appx. 667, 669 (10th Cir. 2008) (citing Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir. 1988)). While the court should not deny a person the opportunity to proceed under 28 U.S.C. § 1915(a) simply because he or she is not “absolutely destitute, ” the court may deny permission for a person to proceed IFP where his or her monthly income exceeds his or her monthly expenses. Brewer, 24 Fed.Appx. at 979 (holding that litigant whose “monthly income exceed[ed] his monthly expenses by a few hundred dollars” according to his own accounting appeared to have sufficient income to pay filing fees, and, thus, was not entitled to IFP status). Westgate v. Astrue, No. 08-4136-JAR, 2008 WL 5110906 at *1 (D. Kan. 2008) (denying IFP motion where total monthly income from all sources “exceed[ed] [the plaintiff's] monthly expenses by $364.00” and therefore, the plaintiff “would be able to pay the filing fee in th[e] case by using his discretionary income from one month”).

         In her application, Plaintiff lists she is unemployed, her husband receives “$3, 050 each month from his job”; the amount of money in a “savings account is $100.00”; she and her husband own two automobiles (one worth about $1, 500 and the other about $38, 000); have a house payment of “$465.00 per month” for a house worth about $65, 000; she and her husband have two dependents; and various monthly expenses (including one car payment and the above house payment) totaling $2, 858.00. Doc. 2, at 2.

         “[W]here discretionary income is sufficient to pay the filing fee even in a case where total expenses exceed total income, denial of an in forma pauperis motion is appropriate.” Scherer v. Merck & Co., No. Civil Action 05-2019-CM, 2006 WL 2524149 at *1 (D. Kan. Aug. 24, 2006). The court believes that Plaintiff has limited income. See Lewis v. Ctr. Mkt., No. CIV. 09-306 JB/RHS, 2009 WL 5217343, at *3 (D.N.M. Oct. 29, 2009), aff'd, 378 Fed.Appx. 780 (10th Cir. 2010) (“While this Court does not suggest that [Plaintiff] is wealthy or has lots of money to spend, she does appear to have discretionary income and/or assets. It appears that she has the ability to spend her discretionary funds on filing fees if she desires.”); Williams v. Oklahoma, No. CIV-16-163-R, 2016 WL 7665658, at *1 (W.D. Okla. Apr. 4, 2016) (“Plaintiff's monthly income would still exceed his non-discretionary monthly expenses by nearly $440.00”), reconsideration denied, 2016 WL 7665659 (W.D. Okla. Apr. 26, 2016). Based on Plaintiff's application, the court believes that the Plaintiff is financially able to pay the filing fees in monthly payments. See Smith v. Comm'r, No. CIV-17-443, Doc. 3 (W.D. Okla., Apr. 20, 2017) (unpublished report & recommendation) (recommending monthly payments of filing fee), adopted, No. CIV-17-443, Doc. 4 (W.D. Okla. May 8, 2017) (unpublished order); Bunch v. Muskogee Hous. Auth., No. 13-CIV-212-RAW, 2013 WL 2181071, at *2 (E.D. Okla. May 20, 2013) (same).

         The undersigned recommends the court grant in part and deny in part Plaintiff's Application to Proceed in District Court without Prepaying Fees or Costs. Doc. 2. The undersigned recommends Plaintiff shall make the first $100 payment to the district court clerk on the date determined by the district court judge. Thereafter, Plaintiff shall pay $50 on or before the first day of each month.

         Failure to pay the filing fee as directed could result in this matter being dismissed pursuant to the Federal Rules of Civil Procedure.

         Plaintiff is advised that notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss at any time all or any part of such complaint which (1) is frivolous or malicious, (2) fails to state a claim on which relief can be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e). Plaintiff is further advised that the monthly payments will continue to be due and owing until full payment of the filing fee has been received by the court even after disposition of the case, and regardless of whether relief is granted or denied.

         Further, the Clerk of Court shall not issue process until at least $100 has been paid toward the filing fees in this matter.

         The undersigned advises Plaintiff of her right to object to this Report and Recommendation. See 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). Any such objection must be filed with the Clerk of the Court on or before February 6, 2018. Plaintiff is further advised that failure to make timely objection to this Report and Recommendation waives her right to appellate review of the factual and legal issues addressed herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).

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