United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
ERWIN UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's (Motion) Application to Proceed
in District Court Without Prepaying Fees or Costs (ECF No.
2). The matter has been assigned to the undersigned
magistrate judge pursuant to In re: Social Security
Cases, GO 16-4 (W.D. Okla.) (eff. Jan. 1, 2017).
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at *1 (10th Cir. April 23, 1999) (unpublished) (“The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 Fed.Appx. 977, 979 (10th Cir.
2002) (unpublished) (citations omitted).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. 144034,
2014 WL 2761142 at *1 (D. Kan. June 18, 2014) (unpublished)
(denying application to proceed in forma pauperis based, in
part, on spouse's current employment and
“substantial annual salary”).
asserts that he has $50, 000 in a checking or savings
account, which is more than enough to pay the filing fee in
this action. Further, after considering all of the expenses
listed by Plaintiff, his monthly income exceeds those monthly
expenses by approximately $405.00. These factors weigh
against Plaintiff demonstrating he qualifies to proceed in
forma pauperis. See Lewis v. Ctr. Mkt., 378
Fed.Appx. 780, 784 (10th Cir. 2010) (unpublished) (denying
application to proceed in forma pauperis where appellant had
“nearly $1, 000 in the bank” and her payments
exceeded her income); Brewer, 24 Fed.Appx. 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”). Therefore, upon
careful consideration, it is recommended that Plaintiff be
denied leave to proceed in forma pauperis.
recommended that Plaintiff's Motion to Proceed in
District Court Without Prepaying Fees or Costs (ECF
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 (21)
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 file an objection to this Report
and Recommendation with the Clerk of Court by August
14, 2019, in accordance with 28 U.S.C. § 636
and Fed.R.Civ.P. 72. Plaintiff is further advised that any
failure to make timely objection to this Report and
Recommendation waives the right to appellate review of the
factual and legal issues addressed herein. Casanova v.
Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
 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. ...