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Dickson v. Commissioner of Social Security

United States District Court, W.D. Oklahoma

April 2, 2019

VIRGIL PAUL DICKSON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, 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. 5. 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.”); 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.

         Proceeding 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.”).

         In his 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.

         The 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).

         Based 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 cases).

         The 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.

         Failure 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 matter.

         The 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).

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Notes:

[1] 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. ...


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