United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.
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.
filing fee in civil cases is presently $400.00. 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).
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).
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”).
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.
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).
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.
to pay the filing fee as directed could result in this matter
being dismissed pursuant to the Federal Rules of Civil
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.
the Clerk of Court shall not issue process until at least
$100 has been paid toward the filing fees in this matter.
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).