United States District Court, W.D. Oklahoma
JOY R. GOELLER, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
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. The matter has been assigned
to the undersigned Magistrate Judge consistent with General
Order 16-4. Plaintiff was ordered to supplement her
application with additional financial information, which she
has done. Doc. 4. Upon review of the documents, the
undersigned recommends Plaintiffs request to proceed in forma
pauperis in this action be denied.
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 Grimes v. TCF
Bank, __F. App'x.__, 2019 WL 1975988, at *1
(10th Cir. May 3, 2019) (reviewing a district court order
denying an IFP application for an abuse of discretion);
see also See Cabrera v. Horgas, 1999 WL 241783, at
*1 (10th Cir. Apr. 23, 1999) ("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
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)
(quoting Rivera v. Allin, 144 F.3d 719, 724 (11th
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 Fed.Appx. 977, 979 (10th Cir.
Jan. 4, 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.
Feb. 4, 2008) ("[T]he district court has broad
discretion in determining whether to grant or deny an
application to proceed in forma pauperis").
matter, Plaintiff has filed an appeal of the Social Security
Commissioner's final decision. See Doc. 1.
Plaintiff is not a prisoner, and therefore the special
concerns attendant to prisoner cases do not exist.
court evaluates "an application to proceed [IFP] ... in
light of the applicant's present financial status."
Scherer, 263 Fed.Appx. at 669 (citing Holmes v.
Hardy, 852 F.2d 151, 153 (5th Cir. 1988)). Among the
factors a district court should consider is the degree to
which the movant's monthly income exceeds her monthly
obligations. Id.; see Brewer v. City of Overland Park
Police Dep't, 24 Fed.Appx. 977, 979 (10th Cir. 2002)
(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 the filing fees, and, thus, was not entitled to IFP
Plaintiff asserts her spouse receives $1, 371.52 every two
weeks in wages and Plaintiff receives $618.00 in
"survivor benefits" and $300.00 in "rent"
every month for a total "monthly income" of $3,
661.04. Doc. 4-1, at 1. Although a portion of this income
appears to be directly deposited into a bank account,
Plaintiff provides no information regarding the balance of
that bank account. Doc. 4-1, at 3.
states her total monthly expenses equal $3, 294.81.
Id. Included in those expenses is an
"entertainment" expense in the amount of $189.40,
which the court views as discretionary. See Scherer v.
Merck & Co., 2006 WL 2524149, at *1 (D. Kan. Aug.
24, 2006) (viewing entertainment expenses as discretionary).
Plaintiff avers she owns one vehicle valued at approximately
$3, 900.00 and states she and her spouse have indefinite
custody of their granddaughter. Doc. 2, at 2; Doc. 4-1, at 1.
According to her own accounting, Plaintiffs monthly income
exceeds her monthly expenses by $366.23. Doc. 4-1, at 1.
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."
Westgate v. Astrue, 2008 WL 5110906, at *1 (D. Kan.
Dec. 2, 2008). The court believes Plaintiff has limited
income. However, based on Plaintiffs application and
supporting documentation, the court finds Plaintiff "has
sufficient [income and] assets to warrant the requirement . .
. that fees be paid." Wasko v. Silverberg, 180
Fed.Appx. 34, 35 (10th Cir. 2006); see, e.g., Lewis v.
Ctr. Mkt., 2009 WL 5217343, at *3 (D.N.M. Oct. 29, 2009)
("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."), aff'd, 378
Fed.Appx. 780 (10th Cir. 2010).
undersigned recommends the court deny Plaintiffs Application
to Proceed in District Court without Prepaying Fees or Costs.
Doc. 2. It is further recommended that if Plaintiff fails to
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 LCvR3.3(e).
undersigned advises Plaintiff of her 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 July 10,
2019. The undersigned further advises Plaintiff 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 u.
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. ...