Opinion
CIV-23-502-D
08-02-2023
YASIN COX, Plaintiff, v. U.S. ATTORNEY RANDALL MCCARTHY, Defendant.
REPORT & RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Plaintiff, appearing pro se, initiated this action on June 7, 2023. Doc. 1.Plaintiff has applied for leave to proceed in forma pauperis, that is, without prepayment of fees and costs. See 28 U.S.C. § 1915. United States District Judge Timothy D. DeGiusti referred the motion to the undersigned Magistrate Judge under 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. For the following reasons, the undersigned recommends the Court deny Plaintiff's in forma pauperis application, Doc. 2.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Discussion.
Upon initiation of this suit, Plaintiff applied to proceed in forma pauperis under 28 U.S.C. § 1915. Doc. 2. The filing fee in civil cases is $402.00.
The filing fee is $350.00. See 28 U.S.C. § 1914(a). In addition, an administrative fee of $52.00 must be paid. See Judicial Conf. Sched. of Fees, Dist. Ct. Misc. Fee Sched. ¶ 14.
Plaintiff's in forma pauperis application reveals Plaintiff: (1) earns $200.00-$300.00 per week from self-employment and “Uber Eats/Door Dash”; (2) has $329.00 in a checking or savings account; (3) has the following monthly expenses: $238.00 for a mortgage, $73.00 for gas and electric, $70.00-$80.00 for water, $200.00 for gas (presumably for a vehicle), and $250.00 for a credit card; (4) has a four-year-old dependent; (5) has two homes, one of which houses a tenant; and (6) has a one-time expense to fix a car, another expense of $1,500.00 for house repairs, and another presumably periodic expense of $30.00 for a city permit. Doc. 2.
Proceeding in forma pauperis “in a civil case is a privilege, not a right- fundamental or otherwise.” White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998). The Court evaluates “an application to proceed in forma pauperis . . . in light of the applicant's present financial status.” Scherer v. Kansas, 263 Fed.Appx. 667, 669 (10th Cir. 2008). 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) (citations omitted).
As to the frivolousness of the complaint, Plaintiff names as Defendant a local attorney, alleging unethical behavior resulting in failure to secure Plaintiff's patent. Doc. 1. Plaintiff's allegations may be frivolous.
Plaintiff is not a prisoner, so the special concerns attendant to prisoner cases do not exist.
In assessing Plaintiff's financial resources, the Court may consider the degree to which the movant's monthly income exceeds his or her monthly obligations. See Scherer, 263 Fed.Appx. at 669; see also Brewer, 24 Fed.Appx. at 979 (denying in forma pauperis status and explaining that plaintiff's “monthly income exceeds his monthly expenses by a few hundred dollars,” according to his own accounting).
Here, “the documentation Plaintiff has provided does not indicate an inability to pay the required filing fee.” Raynor v. Wentz, 357 Fed.Appx. 968, 969 (10th Cir. 2009). The Court concludes that Plaintiff's application reveals sufficient funds to pay both for the necessities of life and for those lawsuits that he deems important, and that allegation of poverty, without more, does not warrant in forma pauperis status. Specifically, Plaintiff's monthly take-home pay of $800.00-$1,200.00 roughly exceeds Plaintiff's monthly expenses, which the Court has calculated to be, at most, $800.00. And although Plaintiff lists some non-monthly expenses-some due only once-the Court also notes the $329.00 in a checking or savings account. Plaintiff also has a tenant at one home, though unable to pay substantial rent for the past six months.
“While this Court does not suggest that [Plaintiff] is wealthy or has lots of money to spend,” the Court finds Plaintiff could spend discretionary funds on filing fees if desired. Lewis v. Ctr. Mkt., 2009 WL 5217343, at *3 (D.N.M. Oct. 29, 2009), aff'd, 378 Fed.Appx. 780 (10th Cir. 2010). And Plaintiff “has given us no indication” that such a determination is incorrect. Burns v. United States, 345 Fed.Appx. 328, 329 (10th Cir. 2009).
The undersigned thus recommends the Court deny Plaintiff's in forma pauperis application and order Plaintiff to make monthly payments of $25.00 until the full filing fee is paid, with an initial payment of $50.00 and service of process only after $100.00 is paid toward the filing fee. See, e.g., Green v. Panhandle Express Energy Servs. LLC, No. CIV-20-88-SLP, 2020 WL 1035255, at *2 (W.D. Okla. Jan. 31, 2020) (recommending the Court order Plaintiff to pay an initial partial filing fee, then “pay $200.00 on or before the first day of each month until the full filing fee is satisfied”), adopted, 2020 WL 1034618 (W.D. Okla. Mar. 3, 2020) (ordering Plaintiff to make two additional payments of $150.00 after payment of the initial partial filing fee); Dungan v. Dep't of Veteran Affs., No. CIV-18-1038-R, 2019 WL 949152, at *1 (W.D. Okla. Jan. 31, 2019) (recommending Plaintiff be ordered to pay an initial partial filing fee of $50.00, then “$50.00 per month thereafter until the filing fee is paid”), adopted sub nom. Dungan v. Dep't of Veterans Affs., 2019 WL 943416 (W.D. Okla. Feb. 26, 2019).
Should this recommendation be adopted, the undersigned further recommends the case be dismissed without prejudice unless Plaintiff makes the first payment within twenty-one days of that order. See LCvR3.3(e).
II. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court deny Plaintiff's in forma pauperis application.
The undersigned advises Plaintiff of the right to file an objection to this report and recommendation with the Clerk of this Court on or before August 23, 2023, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned also advises Plaintiff that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
The Court further advised Plaintiff that failure to pay the filing fee as directed could result in this matter being dismissed pursuant 28 U.S.C. § 1914(c) and Local Civil Rule 3.2. The Clerk of Court shall not issue process until at least $100.00 has been paid toward the filing fees in this matter.
This report and recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter.