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Kimball v. Berryhill

United States District Court, W.D. Oklahoma

February 9, 2018

TERANCE LEE KIMBALL, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Plaintiff's Motion for Leave to Proceed on Appeal Without Prepayment of Costs of Fees [Doc. No. 2].[1] This matter has been assigned pursuant to In re: Social Security Cases, GO 16-4 (W.D. Okla.) (eff. Jan. 1, 2017).

         Plaintiff is required to pay a fee of $400.00 to commence his civil action.[2] Pursuant to 28 U.S.C. § 1915(a), however, 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 See Cabrera v. Horgas, No. 98-4231, 1999 WL 241783 at *1 (10th Cir. April 23, 1999) (unpublished op.) (“The decision to grant or deny in forma pauperis 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 in forma pauperis “in a civil case is a privilege, not a right - fundamental or otherwise.” White v. State of Colo., 157 F.3d 1226, 1233 (10th Cir. 1998). To succeed on a motion to proceed in forma pauperis, 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 F. App'x 977, 979 (10th Cir. 2002) (citations omitted). But, “a person should not be denied the opportunity to proceed under 28 U.S.C. § 1915(a) simply because he or she is not ‘absolutely destitute.'” Id. (citation omitted).

         A review of Plaintiff's Application demonstrates that he has the ability to pay the $400.00 filing fee. The Court has taken into consideration the income of Plaintiff's spouse in making this determination. See generally Zhu v. Countrywide Realty Co., 148 F.Supp.2d 1154, 1155 (D. Kan. 2001) (recognizing that “[i]n a number of cases, courts have found that the income and assets of close family members are relevant to a determination of indigency under 28 U.S.C. § 1915”) (collecting cases); see also Jackson v. United States Dep't of Army, No. 14-4034, 2014 WL 2761142 at *1 (D. Kan. June 18, 2014) (denying application to proceed in forma pauperis based, in part, on spouse's current employment and “substantial annual salary”).

         Plaintiff and his spouse list combined monthly expenses of $2, 873.00. Of those expenses, $258.00 is designated for the support of additional dependents not living at their home. Mot. 7. Plaintiff, however, did not identify any individuals living outside the home who rely on him or his spouse for support. Id. at 5. Instead, Plaintiff identified a forty-two-year-old nephew and a twenty-eight-year-old grandson who live inside the home. Id. Those two individuals are adults and are not considered dependents for the purposes of this motion. See Basic v. Boeing Corp., No. 17-1103-EFM-KGG, 2017 WL 2021476, at *1 (D. Kan. May 12, 2017), report and recommendation adopted, No. 17-1103-EFM-KGG, 2017 WL 2297656 (D. Kan. May 26, 2017) (“Because these individuals are legal adults, they cannot be considered dependents for purposes of this motion.”); Jenkins v. Liberal Police Dep't, No. 16-1374-JTM-KGG, 2016 WL 6433028, at *1 (D. Kan. Sept. 30, 2016) (“Because Plaintiff's son is a legal adult, he cannot be considered a dependent for purposes of this motion.”).[3] Excluding this expense, Plaintiff and his spouse's combined monthly expenses amount to $2, 615.00.

         Over the past twelve months, Plaintiff and his spouse received an average of $2, 860.71 of income per month. However, next month, Plaintiff and his spouse expect to receive a combined $3, 043.00 of income. Mot. 4. Considering the expenses listed by Plaintiff, his and his spouse's current monthly income exceed their monthly expenses in an amount sufficient to allow payment of the filing fee. Compare Brewer, 24 F. App'x at 979 (denying request to proceed in forma pauperis where the plaintiff's “monthly income exceed[ed] his monthly expenses by a few hundred dollars”); see also Westgate v. Astrue, No. 08-4136-JAR, 2008 WL 5110906 at *1 (D. Kan. Dec. 2, 2008) (unpublished op.) (denying in forma pauperis 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”).

         Other factors further weigh against Plaintiff demonstrating an inability to pay the filing fee. Plaintiff and his spouse have $800.00 in cash and $710.00 in bank accounts. Plaintiff owns a home, in which he has $21, 000.00 in equity. Plaintiff owns two cars-a 2008 Dodge Truck valued at $4, 000.00 which he owns free and clear and a 2016 Dodge Journey for which the amount owed exceeds the value. Compare Jackson, 2014 WL 2761142 at *2 (“A court may consider the applicant's assets (e.g. equity in real estate), not merely her income, in determining the applicant's ability to pay the filing fee.”); Scherer v. State, No. 06-2446-JWL, 2006 WL 3147731, at *2 (D. Kan. Nov. 1, 2006) (considering the equity in the plaintiff's “one extra vehicle” and home when denying IFP status). Additionally, the Court notes that Plaintiff's expenses include discretionary items such as payments to Kohls and credit cards. See Jackson, 2014 WL 2761142 at * 1 (discretionary expenses including “payments for cable and balance owed for purchases made at Nebraska Furniture Mart, Sears and Menards” demonstrated that Plaintiff's financial status did not warrant a waiver of the filing fee).

         For all the reasons set forth, Plaintiff's Motion demonstrates an ability to pay the filing fee. Therefore, upon careful consideration of the relevant factors and Plaintiff's financial condition as set forth in his motion, Plaintiff does not qualify to proceed in forma pauperis.

         RECOMMENDATION

         It is recommended that Plaintiff's Motion for Leave to Proceed on Appeal Without Prepayment of Costs of Fees [Doc. No. 2] be denied. It is further recommended that if Plaintiff does not pay the $400.00 filing fee in full to the Clerk of the Court within twenty-one days of any order adopting this Report and Recommendation, that this action be dismissed without prejudice to refiling, pursuant to LCvR 3.3(e).

         NOTICE OF RIGHT TO OBJECT

         Plaintiff is advised of his right to object to this Report and Recommendation. See 28 U.S.C. ยง 636 and Fed.R.Civ.P. 72. Any such objection must be filed with the Clerk of the Court on or before March 2, 2018. Plaintiff is further advised that failure to make timely objection to this Report and Recommendation waives his right to appellate review of the ...


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