Opinion
Case No. CIV-20-413-SM
05-12-2020
DUSTYN KING, 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 and supplement to the application. Docs. 2, 5. This matter has been assigned to the undersigned Magistrate Judge consistent with General Order 16-4.
The court ordered Plaintiff to supplement his sworn affidavit and provide complete information regarding his income and expenses. Doc. 4. Instead, counsel submitted a supplement on his client's behalf. Doc. 5.
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 his 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 receives $1,200.00 per month in VA disability income and $636 per month in child support payments for his two children, amounting to a total monthly income of $1,836.00; his total monthly expenses are $1,815.00, including gasoline, car insurance, internet, utilities, food, loan and credit card debt, mortgage payments, and other personal expenses. Doc. 5, at 1-2. Plaintiff also owns a house and vehicle, each approximately valued at $70,000.00 and $3,500.00, respectively. Doc. 2, at 3.
The court believes that Plaintiff has limited income, but his monthly income still exceeds his monthly expenses. Doc. 5, at 1-2. "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 F. App'x 780 (10th Cir. 2010). Based on Plaintiff's supplement to his 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 $25.00 per month toward the filing fees in this matter, on the date to be determined by the district court judge. Thereafter, Plaintiff shall pay $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.
Further, the Clerk of Court shall not issue process until at least $100 has been paid 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 2, 2020. Plaintiff is further advised 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).
ENTERED this 12th day of May, 2020.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE