Opinion
Case No. CIV-20-417-STE
05-08-2020
DENA ASPEN, Plaintiff, v. COMMISSIONER OF SOCAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
Before the Court is Plaintiff's Motion and 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 her 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 See Cabrera v. Horgas, No. 98-4231, 1999 WL 241783 at *1 (10th Cir. April 23, 1999) (unpublished) ("The decision to grant or deny in forma pauperis status under § 1915 lies within the sound discretion of the trial court.").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).
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 Brewer v. City of Overland Park Police Dep't, 24 F. App'x 977, 979 (10th Cir. 2002) (unpublished) (citations omitted).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 she has the ability to pay the $400.00 filing fee. Plaintiff asserts that she has $3,010.00 in checking and savings accounts, which is more than enough to pay the filing fee in this action. Further, although Plaintiff lists medical debt, and a desire to pay her son $500.00 for rent and food, she indicates she is only paying a monthly obligation of $20.00 to the "IRS". Plaintiff indicates no other debts. See ECF No. 2:3. These factors weigh against Plaintiff demonstrating she qualifies to proceed in forma pauperis. "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) Therefore, upon careful consideration, it is recommended that Plaintiff be denied leave to proceed in forma pauperis.
RECOMMENDATION
It is recommended that Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 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 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 May 26, 2020, 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 May 8, 2020.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE