Opinion
Case No. CIV-20-593-SM
06-24-2020
STEPHANIE DITTMEYER, Plaintiff, v. ANDREW SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
Before the court is Plaintiff's 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 Grimes v. TCF Bank, 769 F. App'x. 659, 660 (10th Cir. 2019) (reviewing a district court order denying an IFP application for an abuse of discretion); Cabrera v. Horgas, 1999 WL 241783, at *1 (10th Cir. 1999) ("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).
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 in forma pauperis (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).
The court evaluates "an application to proceed [IFP] . . . in light of the applicant's present financial status." Scherer v. Kansas, 263 F. App'x 667, 669 (10th Cir. 2008) (citing Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir. 1988)). Among the factors a district court should consider is the degree to which the movant's monthly income exceeds her monthly obligations. See Scherer, 263 F. App'x at 669; Brewer, 24 F. App'x at 979 (holding that litigant whose "monthly income exceed[ed] his monthly expenses by a few hundred dollars" according to his own accounting, appeared to have sufficient income to pay filing fees, and, thus, was not entitled to IFP status). "[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, at *1 (D. Kan. Aug. 24, 2006).
Plaintiff's spouse receives $2,000.00 per month in income. Doc. 2, at 1. Plaintiff states her total monthly expenses are, at most, $1,800.00, which includes a car payment, car insurance, gasoline, utilities, phone bill, food, and medical insurance. Id. at 2. Although she lists a car payment and car insurance as part of her monthly expenses, Plaintiff states she has no assets. Id. She also states she has no debts or other financial obligations. Id.
The court believes that Plaintiff has limited income, but her spouse's monthly income still exceeds Plaintiff's monthly expenses. Id. at 1-2. See, e.g., Patillo v. N. Am. Van Lines, Inc., No. 02-2162, 2002 WL 1162684, at *1 (D. Kan. Apr. 15, 2002) (denying motion where plaintiff and spouse had monthly net income of $2,000.00 and monthly expenses of $1,715.00). "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., 2009 WL 5217343, at *3 (D.N.M. Oct. 29, 2009), aff'd, 378 F. App'x 780 (10th Cir. 2010). Based on Plaintiff's application, the court finds that Plaintiff "has sufficient [income and] assets to warrant the requirement . . . that fees be paid." Wasko v. Silverberg, 180 F. App'x 34, 35 (10th Cir. 2006). See also Holmes v. GPM Se., LLC, 2019 WL 4280676, at *1 (W.D. Okla. Aug. 19, 2019) (finding that "Plaintiff is financially able to pay the filing fee in monthly payments" where he had enough income "to live off of and to take care of his [daily] needs") (internal quotation omitted), adopted, 2019 WL 4280053 (W.D. Okla. September 10, 2019); Peterson v. Comm'r of Soc. Sec., No. CIV-18-1077-SM, 2018 WL 6424793, at *1-2 (W.D. Okla. Nov. 2, 2018) (recommending $25.00 monthly payments where applicant's monthly expenses totaled $1838.00 and monthly income was $1,900.00), adopted, No. CIV-18-1077-SM, 2018 WL 6422471 (W.D. Okla. Dec. 6, 2018); 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).
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 $50.00 per month toward the filing fees in this matter, on the date to be determined by the district court judge. Thereafter, Plaintiff shall pay $50.00 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. The Clerk of Court shall not issue process until at least $100.00 has been paid toward the filing fees in this matter.
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 July 14, 2020. 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 24th day of June, 2020.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE