Opinion
CIV-23-703-SLP
09-07-2023
DENISE L. THOMAS-HAYWARD-HUDSON, Plaintiff, v. OCHA, et al., Defendants.
ORDER
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Plaintiff, appearing pro se, applies to proceed in forma pauperis, that is, without prepayment of fees and costs. Doc. 2.United States District Judge Scott L. Palk 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 and dismiss this action unless she pays the full filing fee.
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. In addition an administrative fee of $52.00.
A court has discretion under 28 U.S.C. § 1915(a) in deciding whether to grant a civil litigant permission to proceed in forma pauperis. Lister v. Dep't of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005). The Court may consider a variety of factors in exercising its discretion, including: “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 frivolousness or maliciousness, the Court cannot adequately assess this factor based on Plaintiff's complaint, as it does not clearly state her cause of action or allegations. See Doc. 1. Plaintiff is not a prisoner, so the special concerns attendant to prisoner cases do not apply. As to the financial resources factor, the Court also cannot adequately assess the demands on Plaintiff's resources because she did not follow the Court's order to supplement her in forma pauperis application.
Although Plaintiff used the correct form for her application, she filed only the first page. See id. To facilitate a full accounting of her financial status, the Court ordered Plaintiff to supplement her application by filing the entire form by August 31, 2023. Doc. 4. To date, Plaintiff has not responded to the Court's order.
The Clerk of Court mailed a copy of the order to the address Plaintiff had provided the Court. Under Local Civil Rule 5.4, it is a pro se litigant's responsibility to notify the court and opposing parties of any change of address. LCvR5.4(a). “Papers sent by the court will be deemed delivered if sent to the last known address given to the court.” Id. Further, there is no indication the order to supplement went undelivered as it has not been returned to the Clerk of Court as undeliverable.
Because Plaintiff has not shown that she is entitled to this Court's authorization to proceed without prepayment of the filing fee, the undersigned recommends that the Court deny Plaintiff's in forma pauperis application. The undersigned further recommends that the Court dismiss this action without prejudice unless Plaintiff pays the filing fee in full to the Clerk of Court within twenty-one days of any order adopting this Report and Recommendation. See LCvR3.3(e) (“In the event the application is denied, the filing party shall have 21 days, unless a different time is specified by the court, within which to pay the required filing fees.”); see also Fed.R.Civ.P. 41(b) (stating a court may dismiss an action if the plaintiff “fails to prosecute or to comply with these rules or a court order”).
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, Doc. 2, and dismiss this case without prejudice unless Plaintiff pays the full filing fee within twenty-one days of any order adopting this Report and Recommendation.
The undersigned advises Plaintiff of her right to file an objection to this report and recommendation with the Clerk of this Court on or before September 21, 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).
This report and recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter.
SO ORDERED.