Opinion
23-CV-02555-EFM-GEB
02-09-2024
MICHAEL O. DEVAUGHN, Plaintiff, v. COUNTY OF MEADE, et; al. Defendant.
REPORT AND RECOMMENDATION AND NOTICE
GWYNNE E. BIRZER UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Plaintiff Michael O. Devaughn's Motion to Proceed Without Prepayment of Fees (ECF, No. 2, sealed) and supporting Affidavit of Financial Status (ECF, No. 3, sealed). For the reasons outlined below the Court recommends the Plaintiff's motion (ECF, No. 2, sealed ) be DENIED.
I. NOTICE
Within fourteen (14) days after a party is served with a copy of this Report and Recommendation, any party may, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2), file written objections to this Report and Recommendation. A party must file any objections within the fourteen-day period if the party wants to have appellate review of the proposed findings of fact, conclusions of law, or recommended disposition.
II. REPORT AND RECOMMENDATION
Under 28 U.S.C. § 1915(a) the Court has the discretion to authorize filing of a civil case “without prepayment of fees or security thereof, by a person who submits an affidavit that . . . the person is unable to pay such fees or give security thereof.” “Proceeding in forma pauperis in a civil case ‘is a privilege, not a right-fundamental or otherwise.'” To determine whether a party is eligible to proceed without prepayment of the fee, the Court reviews the party's financial affidavit and compares his or her monthly expenses with the monthly income disclosed therein.
Barnett ex rel. Barnett v. Nw. Sch., No. 00-2499-KHV, 2000 WL 1909625, *1 (D. Kan. Dec. 26, 2000) (citing Cabrera v. Horgas, No. 98-4231, 173 F.3d 863, *1 (10th Cir. April 23, 1999)).
Id. (quoting White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998)).
Alexander v. Wichita Hous. Auth., No. 07-1149-JTM, 2007 WL 2316902, *1 (D. Kan. Aug. 9, 2007) (citing Patillo v. N. Am. Van Lines, Inc., No. 02-2162-JWL, 2000 WL 1162684, *1) (D. Kan. April. 15, 2002) and Webb v. Cessna Aircraft, No. 00-2229-JWL, 2000 WL 1025575, *1 (D. Kan. July 17, 2000)).
Upon reviewing the Plaintiff's financial affidavit, the Court determines the Plaintiff has sufficient monthly income exceeding reported expenses, such that reasonable payments can be made. To succeed on a Motion to Proceed Without Prepayment of Fees, Plaintiffs must demonstrate they are financially unable to pay the filing fee. The current filing fee for a civil complaint is $405. Plaintiff's sworn income is $868.00 per month, and reported expenses (i.e. rent, groceries, gas, phone, car insurance) equal $521.00. The Court recommends Plaintiff be allowed to pay the filing fee in nine monthly payments of $45.00. These payments would not be an undue burden on Plaintiff.
See 28 U.S.C. § 1914(a) ("The clerk of each district court shall require the parties instituting any civil action, suit, or proceeding in such court . . . to pay a filing fee ....").
ECF No. 3, sealed at 4-5.
However, a magistrate judge does not have authority under 28 U.S.C. § 636 to deny a motion to proceed without prepayment of fees.
Lister v. Dept. of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (the denial of plaintiff's motion to proceed in forma pauperis is a dispositive matter and the magistrate judge should issue a report and recommendation for de novo review by the district judge).
Accordingly, the undersigned Magistrate Judge RECOMMENDS that Plaintiff Michael O. Devaughn's Motion to Proceed Without Prepayment of Fees (ECF No. 2, sealed ) is DENIED. Although service of process would normally be undertaken by the clerk of court pursuant to 28 U.S.C. § 1915(d) and Fed.R.Civ.P. 4(c)(3), the clerk is directed to stay service of process pending the District Court's review of the Report and Recommendation.
See Webb. v. Vratil, No. 12-2588-EFM, ECF No. 7 (D. Kan. Sept. 28, 2012) (withholding service of process pending review under 28 U.S.C. § 1915(e) and jurisdictional review).
IT IS SO ORDERED.