Opinion
Case No. CIV-19-699-STE
07-31-2019
REX DARYL ICE, Plaintiff, v. COMMISSIONER OF SOCAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
Before 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).
Plaintiff 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 See Cabrera v. Horgas, No. 98-4231, 1999 WL 241783 at *1 (10th Cir. April 23, 1999) (unpublished) ("The decision to grant or deny in forma pauperis status under § 1915 lies within the sound discretion of the trial court.").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).
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. Misc. Fee Sched. ¶ 14.
Proceeding 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 Brewer v. City of Overland Park Police Dep't, 24 F. App'x 977, 979 (10th Cir. 2002) (unpublished) (citations omitted).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. (citation omitted).
A 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").
Plaintiff 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 F. App'x 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 F. App'x 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.
RECOMMENDATION
It is 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).
NOTICE OF RIGHT TO OBJECT
Plaintiff 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).
ENTERED on July 31, 2019.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE