Opinion
Case No. CIV-19-491-SM
06-19-2019
JOY R. GOELLER, 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. The matter has been assigned to the undersigned Magistrate Judge consistent with General Order 16-4. Plaintiff was ordered to supplement her application with additional financial information, which she has done. Doc. 4. Upon review of the documents, the undersigned recommends Plaintiff's request to proceed in forma pauperis in this action be denied.
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, ___ F. App'x. ___, 2019 WL 1975988, at *1 (10th Cir. May 3, 2019) (reviewing a district court order denying an IFP application for an abuse of discretion); see also See Cabrera v. Horgas, 1999 WL 241783, at *1 (10th Cir. Apr. 23, 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 "'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) (quoting Rivera v. Allin, 144 F.3d 719, 724 (11th 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. Jan. 4, 2002) (citations omitted); 28 U.S.C. § 1915(a)(1); Lister, 408 F.3d at 1312; see Scherer v. Kansas, 263 F. App'x 667, 669 (10th Cir. Feb. 4, 2008) ("[T]he district court has broad discretion in determining whether to grant or deny an application to proceed in forma pauperis.").
In this matter, Plaintiff has filed an appeal of the Social Security Commissioner's final decision. See Doc. 1. Plaintiff is not a prisoner, and therefore the special concerns attendant to prisoner cases do not exist.
The court evaluates "an application to proceed [IFP] . . . in light of the applicant's present financial status." Scherer, 263 F. App'x at 669 (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. Id.; see Brewer v. City of Overland Park Police Dep't, 24 F. App'x 977, 979 (10th Cir. 2002) (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 the filing fees, and, thus, was not entitled to IFP status).
Here, Plaintiff asserts her spouse receives $1,371.52 every two weeks in wages and Plaintiff receives $618.00 in "survivor benefits" and $300.00 in "rent" every month for a total "monthly income" of $3,661.04. Doc. 4-1, at 1. Although a portion of this income appears to be directly deposited into a bank account, Plaintiff provides no information regarding the balance of that bank account. Doc. 4-1, at 3.
Plaintiff states her total monthly expenses equal $3,294.81. Id. Included in those expenses is an "entertainment" expense in the amount of $189.40, which the court views as discretionary. See Scherer v. Merck & Co., 2006 WL 2524149, at *1 (D. Kan. Aug. 24, 2006) (viewing entertainment expenses as discretionary). Plaintiff avers she owns one vehicle valued at approximately $3,900.00 and states she and her spouse have indefinite custody of their granddaughter. Doc. 2, at 2; Doc. 4-1, at 1. According to her own accounting, Plaintiff's monthly income exceeds her monthly expenses by $366.23. Doc. 4-1, at 1.
"[W]here discretionary income is sufficient to pay the filing fee even in a case where total expenses exceed total income, denial of an in forma pauperis motion is appropriate." Westgate v. Astrue, 2008 WL 5110906, at *1 (D. Kan. Dec. 2, 2008). The court believes Plaintiff has limited income. However, based on Plaintiff's application and supporting documentation, the court finds 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, e.g., Lewis v. Ctr. Mkt., 2009 WL 5217343, at *3 (D.N.M. Oct. 29, 2009) ("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."), aff'd, 378 F. App'x 780 (10th Cir. 2010).
The undersigned recommends the court deny Plaintiff's Application to Proceed in District Court without Prepaying Fees or Costs. Doc. 2. It is further recommended that if Plaintiff fails to 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 LCvR3.3(e).
The undersigned advises Plaintiff of her right to object to this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Any such objection must be filed with the Clerk of the Court on or before July 10, 2019. The undersigned further advises Plaintiff 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 19th day of June, 2019.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE