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. 5. 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.”); Lister v. Dep't of the
Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005).
“Section 1915(a) applies to all persons applying for
IFP status, and not just to prisoners.”
Lister, 408 F.3d at 1312.
IFP “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 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); 28
U.S.C. § 1915(a)(1); Lister, 408 F.3d at 1312;
see Scherer v. Kansas, 263 Fed.Appx. 667, 669 (10th
Cir. 2008) (“[T]he district court has broad discretion
in determining whether to grant or deny an application to
proceed in forma pauperis.”).
application, Plaintiff states he is not employed, he and his
wife receive a total of $1622.00 per month in SSI payments
and $192.00 per month in food stamps, he owns a “2005
Acura MDX, ” his monthly expenses are approximately
$1313.00, and he has no debts or financial obligations. Doc.
5, at 1-2.
court believes that Plaintiff has limited income, but notes
his monthly expenses are approximately $309.00 less than his
monthly income, not including food stamps. Id.;
see Lewis v. Ctr. Mkt., 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.”);
Raine v. Comm'r, 2018 WL 1146638, at *2 (W.D.
Okla. Feb. 13, 2018) (finding Plaintiff financially able to
pay filing fee in monthly payments where monthly income
exceeded non-discretionary monthly expenses by $192.00),
adopted, 2018 WL 1145948 (W.D. Okla. Mar. 2, 2018).
on Plaintiff's application, the court believes that the
Plaintiff is financially able to pay the filing fees in
monthly payments. See Corum v. Comm'r, 2018 WL
795642, at *2 (W.D. Okla. Jan. 17, 2018), adopted,
2018 WL 794712 (W.D. Okla. Feb. 8, 2018); Raine,
2018 WL 1146638, at *2, adopted, 2018 WL 1145948.
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
undersigned recommends the court grant in part and deny in
part Plaintiffs Application to Proceed in District Court
without Prepaying Fees or Costs. Doc. 5. The undersigned
recommends Plaintiff shall make the first $100.00 payment to
the district court clerk on the date determined by the
district court judge. Thereafter, Plaintiff shall pay $100.00
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
Procedure. The Clerk of Court shall not issue process until
at least $100.00 has been paid toward the filing fees in this
undersigned advises Plaintiff of his right to object to this
Report and Recommendation. See 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b)(2). Any such objection must be
filed with the Clerk of the Court on or before April 23,
2019. The undersigned further advises Plaintiff that failure
to make timely objection to this Report and Recommendation
waives his right to appellate review of the factual and legal
issues addressed herein. Moore v. United States, 950
F.2d 656, 659 (10th Cir. 1991).
 The filing fee is $350.00.
See 28 U.S.C. § 1914(a). In addition, an
administrative fee of $50.00 must be paid. See Judicial
Conf. Sched. of Fees, Dist. Ct. ...