Opinion
CIV-22-154-R
03-28-2022
DJUAN PRESTON WILLIAMS, Plaintiff, v. SKF USA Inc., et al., Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE.
Plaintiff filed an Application to Proceed In District Court Without Prepaying Fees or Costs (In Forma Pauperis (“IFP”)). (Docs. 2, 6). United States District Judge David L. Russell referred the motion to the undersigned Magistrate Judge consistent with 28 U.S.C. § 636(b)(1)(B). (Doc. 4). Upon consideration of Plaintiff's Application, the undersigned finds that the applicant is financially able to prepay the fees and costs or give security therefor of the above-captioned proceedings, and further recommends that the Court grant in part and deny in part Plaintiff's Application. (Doc. 2, 6).
The filing fee in civil cases is presently $402.00. 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 total filing fee includes a base fee of $350.00 and an administrative fee of $52.00. See 28 U.S.C. § 1914(a); 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 Fed.Appx. 977, 979 (10th Cir. 2002) (citations omitted). Plaintiff has filed an employment discrimination case. He is not a prisoner, and therefore the special concerns attendant to prisoner cases do not exist.
The court evaluates “an application to proceed [IFP] . . . in light of the applicant's present financial status.” Scherer v. Kansas, 263 Fed.Appx. 667, 669 (10th Cir. 2008) (citation omitted). Among the factors the court should consider is the degree to which the movant's monthly income exceeds his monthly obligations. See id.; Brewer, 24 Fed.Appx. 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, 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 employed and claims $1, 890 per month in take-home pay or wages. (Doc. 6, at 1). He reports $5.87 in a checking or savings account and claims no automobile, real estate, stock, bond security, trust, jewelry, artwork, or other financial instrument or thing of value. (Id. at 2). He lists his total monthly household expenses (“rent, utilities, car payment, insurance, phone, rental agreement for appliances, and internet”) as $1, 349, in addition to the $100 each he provides his wife and child every month. (Id.)
“[T]he 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 undersigned believes that Plaintiff has limited income, but his take-home monthly income still exceeds his monthly expenses by more than $300. (See Doc. 6). “While this Court does not suggest that [Plaintiff] is wealthy or has lots of money to spend, [Plaintiff] does appear to have discretionary income and/or assets. It appears that [Plaintiff] has the ability to spend [ ] discretionary funds on filing fees if [Plaintiff] 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).
Based on Plaintiff's Application, the undersigned finds that Plaintiff “has sufficient [income and] assets to warrant the requirement . . . that fees be paid.” Wasko v. Silverberg, 180 Fed.Appx. 34, 35 (10th Cir. 2006). Plaintiff appears “able to pay the filing fee in monthly payments.” Holmes v. GPM Se., LLC, 2019 WL 4280676, at *1 (W.D. Okla. Aug. 19, 2019), adopted, 2019 WL 4280053 (W.D. Okla. Sept. 10, 2019).
RECOMMENDATION
For the foregoing reasons, the undersigned recommends that the court grant in part and deny in part Plaintiff's Application to Proceed In District Court Without Prepaying Fees or Costs. (Docs. 2, 6). The undersigned recommends Plaintiff make an initial payment of $52.00 to the Clerk of Court on a date determined by the District Court Judge. Thereafter, Plaintiff shall pay $50.00 on or before the first day of each month, until the entire $402.00 filing fee has been paid.
Failure to pay the filing fee as directed could result in this matter being dismissed under the Federal Rules of Civil Procedure. The Clerk of Court shall not issue process until at least $52.00 has been paid toward the filing fees in this matter.
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).
Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by April 18, 2022, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge unless and until the matter is re-referred.