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. See Doc. 2. The 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 Grimes v. TCF Bank,
769 Fed.Appx. 659, 660 (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 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) (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. Plaintiff is not a
prisoner, and therefore the special concerns attendant to
prisoner cases do not exist.
spouse receives $1, 600.00 every month in income and the
family receives $440.00 a month in food stamps. Doc. 2, at 1.
Plaintiff avers his spouse owns one vehicle for which her
parents pay a monthly payment and the monthly insurance
premium. Id. at 2. He owns no other real estate,
financial instruments, or things of value. Id.
Plaintiff avers he currently has $0.00 in any bank account.
Id. He identifies monthly expenses of approximately
$1, 465.00. Id. Plaintiff has two dependents and
states he is in default on two school loans, one for him and
another for his spouse. Id. He identifies no other
debt or financial obligations. Id.
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.”
Scherer v. Merck & Co., 2006 WL 2524149, at *1
(D. Kan. Aug. 24, 2006). The court believes Plaintiff has
limited income, but notes his monthly expenses are
approximately $135.00 less than his monthly income, not
including food stamps. Doc. 2, at 1-2; 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). Based
on Plaintiff's application, the court is of the opinion
Plaintiff is financially able to pay the filing fee in
monthly payments. See Corum v. Comm'r,
No. CIV-18-38-SM, 2018 WL 795642, at *2 (W.D. Okla. Jan. 17,
2018) (recommending monthly payment of filing fee),
adopted, 2018 WL 794712 (W.D. Okla. Feb. 8, 2018).
undersigned recommends the court grant in part and deny in
part Plaintiff's Application to Proceed in District Court
without Prepaying Fees or Costs. Doc. 2. The undersigned
recommends Plaintiff shall make the first $25.00 payment to
the district court clerk on the date determined by the
district court judge. Thereafter, Plaintiff shall pay $25.00
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
September 25, 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 v. United States, 950 F.2d 656, 659 (10th Cir.
 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. ...