United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff's Motion for Leave to Proceed on
Appeal Without Prepayment of Costs of Fees [Doc. No.
This matter has been assigned pursuant to In re: Social
Security Cases, GO 16-4 (W.D. Okla.) (eff. Jan. 1,
is required to pay a fee of $400.00 to commence his civil
action. 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(unpublished op.)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).
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.
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
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.”). Excluding this expense,
Plaintiff and his spouse's combined monthly expenses
amount to $2, 615.00.
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”).
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).
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.
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).
OF RIGHT TO OBJECT
is advised of his right to object to this Report and
Recommendation. See 28 U.S.C. § 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 ...