Opinion
CIV-23-789-SM
10-03-2023
RACHEL CELESTE LINAM, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
REPORT & RECOMMENDATION
Suzanne Mitchell, United States Magistrate Judge
Plaintiff, represented by counsel, applies for leave to proceed in forma pauperis, that is without prepayment of fees and costs. Docs. 2, 6.For the following reasons, the undersigned recommends the Court deny Plaintiff's in forma pauperis application.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Discussion.
Upon initiation of this suit, Plaintiff applied to proceed in forma pauperis under 28 U.S.C. § 1915. Doc. 2. The filing fee in civil cases is $402.00.
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.
Her original application revealed: (1) she has no monthly income; (2) she has $65.00 in a checking or savings account; (3) she owns a 2005 Chevy 1500 valued at $4,000.00, a Ford Mustang valued at $2,000.00, an office building or shop in which the family resides valued at $50,000.00, and a 2015 Ford F-150 valued at $30,000.00; (4) she has the following monthly expenses: $400.00 for electric, $420.00 for a mortgage, $370.00 for an auto loan, $133.00 for a student loan, $656.00 for another mortgage, $620.00 for insurance, $107.00 for trash service, and $155.00 for a personal loan; she has two dependents whose support she does not contribute to; and she has the following debts: $11,000.00 for a student loan; $1,050.00 for a personal loan; $3,200.00 for a credit card; and $6,000.00 for East Central University. Id. at 2.
The Court directed Plaintiff to supplement her application to provide complete information about her monthly income and expenses. Plaintiff's supplement reveals: (1) her spouse has a monthly income of $6,200.00; (2) she receives unspecified financial help from family and friends; (3) her husband assists with her $400.00 electric bill, their $420.00 a month farm mortgage payment, their $370.00 auto loan payment, their $133.00 student loan payment, their $656.00 mortgage payment, their $620.00 insurance payment, their $155.00 personal loan payment, and their $107.00 trash service payment. Doc. 6, Ex. 1.
Plaintiff also identifies other debts as either marital or personal but does not include any monthly payment amounts. Doc. 6, Ex. 1.
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). The Court evaluates “an application to proceed in forma pauperis . . . in light of the applicant's present financial status.” Scherer v. Kansas, 263 Fed.Appx. 667, 669 (10th Cir. 2008). 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).
Turning to the first factor, Plaintiff appeals the Commissioner of Social Security's denial of benefits. Doc. 1. As to the second factor, Plaintiff is not a prisoner, so the special concern placed on prisoner complaints does not apply. Finally, in assessing Plaintiffs financial resources, the Court may consider the degree to which the movant's monthly income exceeds his monthly obligations. See Scherer, 263 Fed.Appx. at 669; see also Brewer, 24 Fed.Appx. at 979 (denying in forma pauperis status and explaining that plaintiff's “monthly income exceeds his monthly expenses by a few hundred dollars,” according to his own accounting).
Here, “the 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). The Court concludes that Plaintiff's application reveals sufficient funds to pay both for the necessities of life and for those lawsuits that she deems important, and that her allegation of poverty, without more, does not warrant in forma pauperis status.
Specifically, Plaintiff's spouse has a monthly income of $6,200.00, which exceeds their disclosed monthly expenses by $3,339.00. See Ice v. Comm'r, No. CIV-19-699-STE, 2019 WL 4131095, at *1 (W.D. Okla. July 31, 2019) (denying in forma pauperis motion after “tak[ing] into consideration the income of Plaintiff's spouse”), adopted sub nom. Ice v. Saul, 2019 WL 4131090 (W.D. Okla. Aug. 29, 2019); 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); Zhu v. Countrywide Realty Co., 148 F.Supp.2d 1154, 1155 (D. Kan. 2001) (recognizing that “[i]n a number of cases, courts have found that the income and assets of close family members are relevant to a determination of indigency under 28 U.S.C. § 1915.”) (collecting cases).
“While this Court does not suggest that [Plaintiff] is wealthy or has lots of money to spend,” the Court finds Plaintiff could spend his 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). And Plaintiff “has given us no indication” that such a determination is incorrect. Burns v. United States, 345 Fed.Appx. 328, 329 (10th Cir. 2009).
The undersigned thus recommends the Court deny Plaintiff's in forma pauperis application. Should this recommendation be adopted, the undersigned further recommends the case be dismissed without prejudice unless Plaintiff pays the filing fee in full within twenty-one days of that order. See LCvR3.3(e).
II. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court deny Plaintiff's in forma pauperis application.
The undersigned advises Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before October 17, 2023, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned also advises Plaintiff that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
The Court further advised Plaintiff that failure to pay the filing fee as directed could result in this matter being dismissed pursuant 28 U.S.C. § 1914(c) and Local Civil Rule 3.2.