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recommending $25.00 monthly payments where applicant's monthly expenses totaled $1838.00 and monthly income was $1,900.00
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Case No. CIV-18-1077-SM
11-02-2018
ANDREA PETERSON, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
Plaintiff has filed an application to proceed in district court without prepaying fees or costs, Doc. 2. This matter has been assigned to the undersigned Magistrate Judge consistent with General Order 16-4.
The 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 Cabrera v. Horgas, No. 98-4231, 1999 WL 241783 at *1 (10th Cir. 1999) ("The decision to grant or deny in forma pauperis [IFP] status under § 1915 lies within the sound discretion of the trial court."); Lister v. Dep't of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005). "Section 1915(a) applies to all persons applying for IFP status, and not just to prisoners." Lister, 408 F.3d at 1312.
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 IFP "in a civil case is a privilege, not a right - fundamental or otherwise." White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998). To succeed on a motion to proceed IFP, 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) (citations omitted). Plaintiff is not a prisoner, and therefore, the special concerns attendant to prisoner cases do not exist.
Turning to the applicant's present financial status, she "must show a financial inability to pay the required filing fees . . . ." DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). "[W]here discretionary income is sufficient to pay the filing fee even in a case where total expenses exceed total income, denial of an [IFP] motion is appropriate." Scherer v. Merck & Co., 2006 WL 2524149 (D. Kan. Aug. 24, 2006); see Scherer v. Kansas, 263 F. App'x 667, 669 (10th Cir. 2008) ("[W]e note again that the district court has broad discretion in determining whether to grant or deny an application to proceed [IFP].").
In her application, Plaintiff states her spouse earns $1,900.00 monthly. Doc. 2, at 1. She has $21.00 in a checking or savings account. Id. at 2. She states her monthly expenses total approximately $1838.00. Id. This amount does not include food expenses and Plaintiff represents they spend "[w]hatever we can afford" on groceries. Id. These approximately $1838.00 expenses include a $125.00 monthly phone payment, a $117.00 monthly internet payment, and a $50.00 monthly television payment. She owns a 2010 Ford Mustang, valued at $2000.00, and a home valued at $70,000.00, $30,000.00 of which remains owed. Id. She included her house payment in her monthly expenses. Id. She has no dependents. Id.
The court believes that Plaintiff has limited income. "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." Lewis v. Ctr. Mkt., No. CIV. 09-306 JB/RHS, 2009 WL 5217343, at *3 (D.N.M. Oct. 29, 2009), aff'd, 378 F. App'x 780 (10th Cir. 2010); Goans v. Comm'r of Soc. Sec., 2018 WL 4232235, at *1 (W.D. Okla. Aug. 10, 2018) (recommending $25.00 monthly payments where applicant's monthly expenses totaled $2,722.11, her income was $2,728.96, and she had $20.11 in a bank account); adopted, 2018 WL 4224905 (W.D. Okla. Sept. 4, 2018); Bunch v. Muskogee Hous. Auth., 2013 WL 2181071, at *1 (E.D. Okla. May 20, 2013) (requiring $25.00 monthly payments where applicant's monthly expenses totaled $2,013.00 and her income was $2,040.00). Based on Plaintiff's motion, the court finds that Plaintiff "has sufficient [income and] assets to warrant the requirement . . . that fees be paid," on a monthly basis. Wasko v. Silverberg, 180 F. App'x 34, 35 (10th Cir. 2006).
The 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. Plaintiff shall pay $25.00 per month toward the filing fees in this matter, on the date to be determined by the district court judge. Thereafter, Plaintiff shall pay $25.00 on or before the first day of each month. Failure to pay the filing fee as directed could result in this matter being dismissed pursuant to the Federal Rules of Civil Procedure.
Further, the undersigned recommends the Clerk of Court should not issue process until at least $100.00 has been paid toward the filing fees in this matter.
Plaintiff is advised that notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss at any time all or any part of such complaint which (1) is frivolous or malicious, (2) fails to state a claim on which relief can be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e). Plaintiff is further advised that the monthly payments will continue to be due and owing until full payment of the filing fee has been received by the court even after disposition of the case, and regardless of whether relief is granted or denied.
The undersigned advises Plaintiff of her right to object to this Report and Recommendation. See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). Any such objection must be filed with the Clerk of the Court on or before November 23, 2018. Plaintiff is further advised 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. 1991).
ENTERED this 2nd day of November, 2018.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE