Opinion
CIV-23-1153-R
01-11-2024
ZURI LONDON IRBY ESTATE, Plaintiffs, v. COLEMAN, 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”)). (Doc. 2). 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), and (C). (Doc. 3). The IFP Application provided no information regarding Plaintiff's assets, incomes, debts, or expenses, (Doc. 2), so the court ordered Plaintiff to supplement the IFP Application by providing such financial information, (Doc. 4). In Response, Plaintiff filed a Supplement stating that Plaintiff is an estate with “no income, expenses, or assets.” (Doc. 5, at 1).
The filing fee in civil cases is presently $405.00.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 $55.00. See 28 U.S.C. § 1914(a); Judicial Conf. Sched. of Fees, Dist. Ct. Misc. Fee Sched. ¶ 14.
The United States Supreme Court has stated that “only a natural person may qualify for treatment in forma pauperis under 28 U.S.C. § 1915.” Rowland v. Cal. Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 196 (1993). An artificial entity such as an estate is therefore not eligible to proceed in forma pauperis. See David M. McCrary Est. & Tr. v. Lowes Corp., 2007 WL 3306643, at *1 (D. Utah Nov. 5, 2007) (“Therefore, artificial entities such as the estate and trust may not proceed under [28 U.S.C. § 1915].”); In re Est. of Van Putten, 553 Fed.Appx. 328 (4th Cir. 2014) (mem.) (denying an estate's request to proceed IFP); Gray v. Martinez, 352 Fed.Appx. 656, 658 (3d Cir. 2009) (same).
Plaintiff's Supplement made clear to the court that the sole plaintiff in this action is an estate. (Doc. 5, at 1). Since an estate is not a “person” to which Section 1915(a) applies, Plaintiff is not eligible to proceed in forma pauperis and must pay the filing fee of $405.00 to proceed. Therefore, the undersigned recommends that the Court DENY Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2).
Plaintiff is advised of Plaintiff's right to file an objection to this Report and Recommendation with the Clerk of this Court by February 1, 2024, 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 Plaintiff's 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.