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denying motion where plaintiff reported marital combined net income of $2,000 and monthly expenses of $1,715
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No. 02-2162-JWL.
April 15, 2002
MEMORANDUM AND ORDER
Plaintiffs have applied for leave to file this action without payment of fees, costs, or security and has submitted an affidavit of financial status in support thereof (doc. 2). Section 1915(a) of Title 28 in the United States Code sets forth the circumstances under which an individual is allowed to bring proceedings in forma pauperis. That statute provides that "any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding . . . 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." 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), cert. denied, 526 U.S. 1008 (1999). The decision to grant or deny in forma pauperis status under section 1915 lies within the sound discretion of the trial court. Cabrera v. Horgas, No. 98-4231, 1999 WL 241783, at *1 (10th Cir. Apr. 23, 1999); Cross v. General Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983); Lewis Buggs v. Riverside Hosp., No. 97-1088-WEB, 1997 WL 321289, at *8 (D.Kan. Apr. 9, 1997). This is especially true in civil cases for damages, where courts should grant the privilege "sparingly." Id. In denying such applications, however, a court must not act arbitrarily or deny the application on erroneous grounds. Id.
Plaintiffs' affidavit of financial status indicates that Mr. Patillo is a disabled vetaran who currently receives $1,400.00 per month in net income and Mrs. Patillo currently is employed and earns a monthly net salary of $600.00. Plaintiff's affidavit further states that he and his wife have approximately $1,715.00 in monthly expenses. Based on this information, the Court finds Plaintiff has sufficient financial resources to pay the court's filing fee. See Buggs, 1997 WL 321289, at *8) (denying application to proceed in forma pauperis where net monthly income was approximately $1,500.00 and monthly expenses $1,115.92). For the foregoing reasons, it is hereby ordered that Plaintiffs' Motion for Application for Leave to File Action Without Payment of Fees, Costs or Security (doc. 2) is hereby denied and Plaintiffs are ordered to pay the $150 filing fee no later than May 1, 2002. Upon payment of the filing fee the clerk shall issue summons and deliver the same to Plaintiff for service pursuant to the requirements set forth in Rule 4 of the Federal Rules of Civil Procedure.
IT IS SO ORDERED.