Opinion
CIV-21-500-JD
05-28-2020
BRUCE A. HANCOCK, JR., Plaintiff, v. TBCPM, LLC, et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Plaintiff has filed an Application to Proceed in Forma Pauperis, that is, without prepayment of fees or costs. Doc. 2. United States District Judge Jodi W. Dishman referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3.
The filing fee in civil cases is presently $402.00. Under 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 Fed.Appx. 659, 660 (10th Cir. 2019) (reviewing a district court order denying an in forma pauperis 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 [in forma pauperis] 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 $52.00 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. Colorado, 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 Fed.Appx. 977, 979 (10th Cir. 2002) (citations omitted).
Plaintiff alleges in his complaint that Defendants “knowingly” committed fraud by “continu[ing] with [a] hearing on assets” despite having “created an implied contract when defendant emailed [a] settlement agreement to plaintiff . . . claiming that if Plaintiff agreed to pay a certain amount of money, Defendants would forgive the rest of the debt and not pursue any further court proceedings against plaintiff.” Doc. 1, at 1-2. This hearing on assets, Plaintiff alleges, “result[ed] in plaintiff having failed to appear . . . and a citation authorization [being] entered under false [pretenses].” Id. at 2. Without determining the merits of his complaint, it might be characterized as frivolous or malicious. Plaintiff is not a prisoner, and therefore the special concerns attendant to prisoner cases do not exist.
As to Plaintiff's financial resources, the Court evaluates “an application to proceed in form pauperis . . . in light of the applicant's present financial status.” Scherer v. Kansas, 263 Fed.Appx. 667, 669 (10th Cir. 2008) (citing Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir. 1988)). Among the factors the Court should consider is the degree to which the movant's monthly income exceeds his monthly obligations. See id.; Brewer, 24 Fed.Appx. 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 in forma pauperis status); Westgate v. Astrue, No. 08-4136-JAR, 2008 WL 5110906 at *1 (D. Kan. 2008) (denying in forma pauperis motion where “total monthly income from all sources exceed[ed] [the plaintiff's] monthly expenses by $364.00” and therefore, the plaintiff “would be able to pay the filing fee in th[e] case by using his discretionary income from one month”).
“[T]he documentation Plaintiff has provided does not indicate an inability to pay the required filing fee.” Raynor v. Wentz, 357 Fed.Appx. 968, 969 (10th Cir. 2009). Plaintiff holds two jobs, and his combined net income is $1, 428.00 a month. Doc. 2, at 1. His monthly expenses include $269.00 for rent; $120.00 for gas; $177.00 for a loan payment; $89.00 for an electric bill; and $400.00 “or more” for credit card payments. Id. at 2. These expenses total $1, 055.00. See id. The court believes that Plaintiff has limited income. But his income is sufficient to cover his monthly expenses.
“While this Court does not suggest that [Plaintiff] is wealthy or has lots of money to spend, []he does appear to have discretionary income and/or assets. It appears that []he has the ability to spend h[is] discretionary funds on filing fees if []he desires.” Lewis v. Ctr. Mkt., 2009 WL 5217343, at *3 (D.N.M. Oct. 29, 2009), aff'd, 378 Fed.Appx. 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 Fed.Appx. 34, 35 (10th Cir. 2006).
The undersigned recommends the court grant in part and deny in part Plaintiff's in forma pauperis application, Doc. 2. Plaintiff shall make a payment of $150.00 per month for two months toward the filing fees in this matter, and then the remaining balance of the filing fee. The first payment shall be on the date to be determined by the district court judge. Thereafter, Plaintiff shall pay $150.00 on or before the first day of the following month, and on the first day of the month after that, Plaintiff shall pay the remaining $102.00 balance. Failure to pay the filing fee as directed could result in this matter being dismissed pursuant to the Federal Rules of Civil Procedure.
Further, the undersigned recommends the Clerk of Court should not issue process until at least Plaintiff's first $150.00 payment toward the filing fees in this matter.
Plaintiff is advised that notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss at any time all or any part of such complaint which (1) is frivolous or malicious, (2) fails to state a claim on which relief can be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
The undersigned advises Plaintiff of his 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 June 18, 2021. The undersigned further advises Plaintiff that failure to make timely objection to this Report and Recommendation waives his right to appellate review of the factual and legal issues addressed herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation terminates the referral to the undersigned Magistrate Judge in this matter.