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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"
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Case No. CIV-19-684-F
08-19-2019
AUDREY L. HOLMES, Plaintiff, v. GPM SOUTHEAST, LLC, F/K/A E-Z MART, Defendant.
REPORT AND RECOMMENDATION
Plaintiff has filed an application to proceed in district court without prepaying fees or costs and a court-ordered supplement to her application. See Docs. 2, 4, 5. United States District Judge Stephen P. Friot referred the application to the undersigned Magistrate Judge for consideration. Doc. 3.
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. May 3, 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. 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.").
Plaintiff has filed an employment discrimination case. She is not a prisoner, and therefore the special concerns attendant to prisoner cases do not exist.
Plaintiff, although presently unemployed, identities a reserve of approximately $1,000 in a savings account, a monthly food benefit, and an unidentified amount from her tax refund which she states is enough "to live off of and to take care of [her] day to day needs." Docs. 2, 5. While it appears Plaintiff has limited income, her application and supporting documents demonstrate an ability to pay the filing fee.
"[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." Scherer v. Merck & Co., 2006 WL 2524149, at *1 (D. Kan. Aug. 24, 2006); see also 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). Based on Plaintiff's application, the court is of the opinion Plaintiff is financially able to pay the filing fee in monthly payments. See Corum v. Comm'r, 2018 WL 795642, at *2 (W.D. Okla. Jan. 17, 2018) (recommending monthly payment of filing fee), adopted, 2018 WL 794712 (W.D. Okla. Feb. 8, 2018). Therefore, 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.
The undersigned recommends Plaintiff make $25.00 monthly payments. Plaintiff shall make the first $25.00 payment to the district court clerk on the date determined by the district court judge. Thereafter, Plaintiff shall pay $25.00 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); Fed. R. Civ. P. 72(b)(2). Any such objection must be filed with the Clerk of the Court on or before September 9, 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).
This terminates the referral in this matter.
ENTERED this 19th day of August, 2019.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE