Opinion
24-2191-HLT-ADM
05-06-2024
CESAR RAMON MARTINEZ OLIVARES, Plaintiff, v. HARVESTLAND CONSTRUCTORS INC., Defendant.
REPORT AND RECOMMENDATION
ANGEL D. MITCHELL U.S. MAGISTRATE JUDGE
This matter comes before the court on pro se plaintiff Cesar Ramon Martinez Olivares's (“Martinez Olivares”) Motion to Proceed In Forma Pauperis (“IFP”). (ECF 3.) Title 28 U.S.C. § 1915 allows courts to authorize commencing a civil action “without prepayment of fees or security therefor, by a person who submits an affidavit that . . . the person is unable to pay such fees or give security therefor.” To succeed on an IFP motion, “the movant must show a financial inability to pay the required filing fees.” Lister v. Dep't of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005). Proceeding 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). The decision to grant or deny IFP status under § 1915 lies within the district court's sound discretion. Engberg v. Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001).
Martinez Olivares's affidavit does not show that he is unable to pay the filing fee. It shows that Martinez Olivares is currently employed, and that his monthly income exceeds his reported monthly expenses. Specifically, Martinez Olivares's financial affidavit shows that his average monthly income is $2,800 and his average monthly expenses are $1,725, leaving $1,075 in excess each month. Although his affidavit indicates he gives support in the amount of $1,400 to his mother, niece, and nephew who live with him, the affidavit does not provide evidence that he is legally required to support them, and it does not establish that those amounts are separate from his listed expenses. Moreover, his affidavit indicates he has $2,000 in his checking and/or savings accounts at this time. This does not establish that Martinez Olivares cannot pay the required filing fees.
In accordance with Lister v. Dept. of Treasury, 408 F.3d 1309 (10th Cir. 2005), the court issues this report and recommends that Martinez Olivares's motion to proceed IFP be denied and that Martinez Olivares be ordered to pay the required filing fee within fourteen days. The court further recommends that, if Martinez Olivares does not pay the required filing fee within fourteen days, this case be dismissed without prejudice.
Pursuant to 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72(b)(2), and D. Kan. Rule 72.1.4(b), the court informs Martinez Olivares that he may file specific written objections to this report and recommendation within fourteen days after being served with a copy. If he does not file objections within the fourteen-day time period, no appellate review of the factual and legal determinations in this recommendation will be allowed by any court. See In re Key Energy Res. Inc., 230 F.3d 1197, 1199-1200 (10th Cir. 2000).
IT IS THERFORE ORDERED that the clerk's office is directed to mail a copy of this Report and Recommendation to Martinez Olivares via regular mail and certified mail, return receipt requested.
IT IS SO ORDERED.