Opinion
2:24-cv-02142-HLT-TJJ
05-16-2024
VINH PHAN, Plaintiff, v. XAVIER BECERRA, Secretary of U.S. Department of Health and Human Services, Defendant.
ORDER
HOLLY L. TEETER, UNITED STATES DISTRICT JUDGE
Plaintiff moves the Court for leave to proceed in forma pauperis (Doc. 3). Judge Teresa J. James issued an April 18, 2024 Report and Recommendation (“R&R”) analyzing the motion and determining that Plaintiff does not satisfy the requirements to proceed in forma pauperis (Doc. 6). Judge James's R&R recommends denial of Plaintiff's motion. Plaintiff has not objected and has therefore waived his right to de novo review. See In re Key Energy Res. Inc., 230 F.3d 1197, 11991200 (10th Cir. 2000). The Court has reviewed Judge James's R&R, agrees Plaintiff has not demonstrated a financial inability to pay the required fees, and adopts the R&R in its entirety.
Plaintiff proceeds pro se. Where a pro se party is not clearly apprised of the consequences of failing to object, the firm-waiver rule does not apply. Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir. 1996). Here, Judge James's R&R clearly informed Plaintiff that he was required to file objections within 14 days if he wanted appellate review of the proposed findings of facts, conclusions of law, or recommended disposition, and that appellate review would not be allowed if he did not timely file objections. Doc. 6 at 1. Although Plaintiff is not entitled to de novo review, the Court notes that it would reach the same conclusion under that standard. The Court would reach this decision even though Plaintiff's total monthly expenses appear to exceed his reported monthly income. The total expenses include nearly $2,000 monthly for grocery expense, which appears excessive given that Plaintiff only lists his dependents as a wife and two daughters, age 12 and 10.
THE COURT THEREFORE ORDERS that Judge James's Report and Recommendation (Doc. 6) is ADOPTED.
THE COURT FURTHER ORDERS that Plaintiff's Motion to Proceed Without Prepayment of Fees (Doc. 3) is DENIED.
THE COURT FURTHER ORDERS that Plaintiff prepay the full filing fee ($405.00) within 30 days for this action to proceed. Plaintiff is cautioned that failure to pay the filing fee by that time will result in the dismissal of this action without prejudice.
IT IS SO ORDERED.