Miller
v.
Berryhill

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICOSep 11, 2018
Civ. No. 18-0753 WJ/KBM (D.N.M. Sep. 11, 2018)

Civ. No. 18-0753 WJ/KBM

09-11-2018

GAYLYN V. MILLER, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.


PROPOSED FINDINGS OF FACT AND RECOMMENDED DISPOSITION

THIS MATTER is before the Court on Plaintiff's Motion to Proceed In Forma Pauperis Pursuant to 28 U.S.C. § 1915. Doc. 1. The Court may authorize the commencement of any suit without prepayment of fees by a person if she: (1) submits an affidavit that includes a statement of all assets she possesses and (2) is unable to pay such fees. 28 U.S.C. § 1915(a). In determining whether a movant is unable to pay within the meaning of Section 1915, the Tenth Circuit has indicated that "[o]ne need not be absolutely destitute to proceed IFP." Lewis v. Ctr. Mkt., 378 F. App'x 780, 785 (10th Cir. 2010) (unpublished). Nevertheless, a motion to proceed IFP may properly be denied if the movant can pay the required fees and still support and provide necessities for herself and any dependents. Id.

In her affidavit, Plaintiff states that: (1) her and her husband's combined monthly income is $3,743.00; (ii) their monthly household expenses are approximately $1,641.31, inclusive of payments on credit card debt; (iii) they have $900.00 in cash in banks or savings and loan associations; and (iv) they also have approximately $104,000.00 in an individual retirement account. See Doc. 1.

Thus, it appears that Plaintiff is able to pay the $400.00 filing fee for instituting a new case, because her and her spouse's combined monthly income and cash exceed their monthly expenses. See Brewer v. City of Overland Park Police Dep't, 24 F. App'x 977, 979 (10th Cir. 2002) (litigant whose monthly income exceeded his monthly expenses by a few hundred dollars appeared to have sufficient income to pay filing fees and thus was not entitled to IFP status) (unpublished).

Wherefore,

IT IS HEREBY RECOMMENDED that Plaintiff's Motion to Proceed IFP be denied. THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of these Proposed Findings and Recommended Disposition they may file written objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any objections with the Clerk of the District Court within the fourteen-day period if that party wants to have appellate review of the proposed findings and recommended disposition. If no objections are filed, no appellate review will be allowed.

/s/_________


UNITED STATES MAGISTRATE JUDGE