Bentley v. Whittaker

Full title: EMILIE DEAN BENTLEY, Plaintiff, v. G. SCOTT WHITTAKER, Defendant.

Court: United States District Court, District of Utah

Date published: Apr 1, 2024

2:24-cv-00173 (D. Utah Apr. 1, 2024)

Opinion

2:24-cv-00173

04-01-2024

EMILIE DEAN BENTLEY, Plaintiff, v. G. SCOTT WHITTAKER, Defendant.

Daphne A. Oberg, United States Magistrate Judge

Howard C. Nielson, Jr. District Judge

REPORT AND RECOMMENDATION TO DENY MOTION TO PROCEED IN FORMA PAUPERIS (DOC. NO. 1)

Daphne A. Oberg, United States Magistrate Judge

Pro se Plaintiff Emilie Dean Bentley filed a Motion to Proceed In Forma Pauperis (without paying fees).¹ Under 28 U.S.C. § 1915, a federal court may authorize commencement of an action without prepayment of fees by a person who is unable to pay such fees.² To proceed in forma pauperis under § 1915, Ms. Bentley must show a financial inability to pay the required filing fee.³

1 (“Mot.,” Doc. No. 1.)

2 28 U.S.C. § 1915(a)(1).

3 Lister v. Dep't of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005).

Because the information in Ms. Bentley's motion is insufficient to determine whether she qualifies for waiver of the filing fee, the court issued an order to supplement, noting Ms. Bentley's motion was deficient.⁴ The court instructed Ms. Bentley to supplement or resubmit her motion by March 18, 2024, and warned her that failure to do so could result in the motion being denied.⁵ Ms. Bentley did not supplement her motion within the deadline in the court's order, or anytime thereafter. Because Ms. Bentley did not correct the deficiencies in her motion, she has failed to show financial inability to pay the filing fee.

4 (Order to Suppl. Mot. to Proceed In Forma Pauperis, Doc. No. 3.)

5 (Order to Suppl. Mot. to Proceed In Forma Pauperis 2, Doc. No. 3.)

Accordingly, the undersigned RECOMMENDS⁶ the district judge DENY the motion.⁷ The undersigned further RECOMMENDS Ms. Bentley be given thirty (30) days in which to pay the filing fee. The court will send copies of this Report and Recommendation to Ms. Bentley, who the court notifies of her right to object to it.⁸ Ms. Bentley must file any objection to this Report and Recommendation within fourteen (14) days. Failure to object may constitute waiver of objections upon subsequent review.

6 IFP status is generally denied through a report and recommendation issued by a magistrate judge. See, e.g., Johnson v. Hertz Corp., No. 22-6092, 2022 U.S. App. LEXIS 29345, at *2 (10th Cir. Oct. 21, 2022) (unpublished) (affirming IFP denial based on a magistrate judge's report and recommendation adopted by the district court).

7 (Doc. No. 1.)

8 See 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72(b).