Opinion
Case No. CIV-20-376-SM
05-27-2020
RODNEY WILCOX, Plaintiff, v. ANDREW M. 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 supplements to the application. Docs. 2, 4, 6. This matter has been assigned to the undersigned Magistrate Judge consistent with General Order 16-4.
The filing fee in civil cases is presently $400.00. Under 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 [IFP] 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 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)). To succeed on a motion to proceed in forma pauperis, "the movant must show a financial inability to pay the required filing fees, as well as the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal." DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). 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 Fed. 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); Westgate v. Astrue, No. 08-4136-JAR, 2008 WL 5110906 at *1 (D. Kan. 2008) (denying IFP motion where total monthly income from all sources exceed[ed] [the plaintiff's] monthly expenses by $364.00" and therefore, the plaintiff "would be able to pay the filing fee in th[e] case by using his discretionary income from one month").
Plaintiff is self-employed and receives a take-home pay of $200.00 per week; his spouse's monthly income is $3,800.00; he and his wife have a combined $550.00 in savings and/or checking accounts; he owns three vehicles and several other valuable assets; his monthly expenses amount to $3,191.00; he has two dependents; and he owes $459.00 in debt. Doc. 6, at 2-3. Plaintiff and his spouse's combined income exceed his monthly expenses by $1,409.00.
The court believes that Plaintiff has limited income, but his monthly income exceeds his monthly expenses. "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); Williams v. Oklahoma, No. CIV-16-163-R, 2016 WL 7665658, at *1 (W.D. Okla. Apr. 4, 2016) ("Plaintiff's monthly income would still exceed his non-discretionary monthly expenses by nearly $440.00."), reconsideration denied, 2016 WL 7665659 (W.D. Okla. Apr. 26, 2016). Based on Plaintiff's supplements 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, e.g., 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). "[T]he documentation Plaintiff has provided does not indicate an inability to pay the required filing fee." Raynor v. Wentz, 357 F. App'x 968, 969 (10th Cir. 2009) (citing Lister, 408 F.3d at 1312).
The undersigned recommends the court deny Plaintiff's Application to Proceed in District Court without Prepaying Fees or Costs. Doc. 2. Failure to pay the filing fee as directed could result in this matter being dismissed pursuant to the Federal Rules of Civil Procedure. It is further recommended that if Plaintiff does not pay the $400.00 filing fee in full to the Clerk of the Court within twenty-one days of any order adopting this Report and Recommendation, that this action be dismissed without prejudice to refiling, pursuant to LCvR 3.3(e).
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).
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 10, 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 27th day of May, 2020.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE