Hooker v. Smith et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RALPH D. HOOKER, )
)
Plaintiff, )
)
v. ) Case No. CIV-26-72-G
)
WARDEN FNU SMITH et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
In conformance with 28 U.S.C. § 1915, Plaintiff filed an Application to Proceed in
District Court without Prepaying Fees or Costs (Motion) (ECF No. 2). Pursuant to the
procedures of this Court, the Motion was reviewed by the undersigned and found to be
deficient. Plaintiff was ordered to explain to the Court how he provides for the necessities
of daily living like housing, utilities, and transportation, etc. Plaintiff was specifically
required to identify what support he is receiving or should explain how he is subsisting.
Plaintiff was directed to file an amended application that more fully addressed these
matters. Plaintiff has now submitted an Amended Application to Proceed in District Court
without Prepaying Fees or Costs (Motion) (ECF No. 5). For the following reasons, the
undersigned recommends the Court deny Plaintiff’s request to Proceed in District Court
without Prepaying Fees or Costs
I. ANALYSIS
Plaintiff’s Motion to proceed
in forma pauperis remains deficient. Proceeding
in
forma pauperis (IFP) “in a civil case is a privilege, not a right – fundamental or otherwise.”
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White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998). “[T]o succeed on a motion to
proceed IFP, the movant must show a financial inability to pay the required filing fees.”
Lister v. Dep’t of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005). 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).
Plaintiff has declared he is not employed and is “waiting for social security’s
decision,” but receives an annual payment of $717.97 as proceeds from a work-related
lawsuit.
See ECF No. 5:1. Plaintiff further indicated no other income and “0” in cash or
checking and savings account. Plaintiff indicated in question number 5 that he receives
$293.00 in food stamps and declares that his wife “pays our bills.”
Id at 2. Though the
undersigned presumes Plaintiff has regular living expenses, such as housing, food, gas,
and perhaps internet or a cell phone bill, Plaintiff does not list any such expenses. Plaintiff
provides
no information regarding any regular monthly expenses and there is
no amount
of income listed for his wife in his Motion. Plaintiff did not disclose the amount of his
wife’s income, how much of that income is credited to his monthly subsistence or the
value of any assets jointly held or under his wife’s name that he routinely accesses.
When deciding whether to grant an IFP request, the Court may consider income
and assets of persons who financially support Plaintiff. “[I]n ruling on motions to proceed
in forma pauperis, other courts have considered the income of interested persons, such
as spouses and parents, in evaluating the funds available to the movant.”
Monti v.
McKeon, 600 F. Supp. 112, 114 (D. Conn. 1984
); see also Crawford v. Kern Cnty. Cnty.
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Sch. Dist. Bd. Of Trustees, No. 1:10-CV-00425 OWW JLT, 2010 WL 1980246, at *2 n.1
(E.D. Cal. May 12, 2010) (R&R) (“[P]laintiffs are charged with income to which they have
access, such as their spouse’s income or household income, when determining
applications to proceed in forma pauperis.”)
adopted, 2010 WL 2555637 (E.D. Cal. June
21, 2010);
Zhu v. Countrywide Realty Co., 148 F. Supp. 2d 1154, 1155 (D. Kan. 2001)
(“[C]ourts have found that the income and assets of close family members are relevant
to a determination of indigency under 28 U.S.C. § 1915.”).
Plaintiff failed to properly complete the Application and has not provided the Court
with the required information. Accordingly, Plaintiff’s application is insufficient to grant
him IFP status.
II. RECOMMENDATION
For the foregoing reasons, the undersigned recommends that the Court DENY
Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs
(Motion) (ECF No. 5)1 and that he be ordered to prepay the full $405.00 filing fee for
this action to proceed.
See 28 U.S.C. § 1915(a)(1). Lister v. Department of the Treasury,
408 F.3d 1309, 1312 (10th Cir. 2005) (magistrate judge should issue a report and
recommendation when denying motion to proceed in forma pauperis). An incomplete
application to proceed IFP is often insufficient to establish that IFP status should be
granted.
See id at 1313 (“We conclude that the district court did not abuse its discretion
1 Plaintiff’s Application to Proceed in District Court without Prepaying Fees or Costs (Motion) (ECF
No. 2) is TERMINATED.
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in denying IFP status after [plaintiff], having been specifically instructed on how to
establish indigent status, failed to fill out the proper forms or to otherwise provide the
district court with the requisite information.”)
It is further recommended that this action be dismissed without prejudice to
refiling unless Plaintiff pays the $405.00 filing fee in full to the Clerk of the Court within
twenty (20) days of any order adopting this Report and Recommendation.
III. NOTICE OF RIGHT TO OBJECT.
Plaintiff is advised that he may file an objection to this Report and
Recommendation with the Clerk of this Court by February 19, 2026. Plaintiff is further
advised that failure to timely object to this Report and Recommendation waives the right
to appellate review of both factual and legal issues contained herein.
Casanova v. Ulibarri,
595 F.3d 1120, 1123 (10th Cir. 2010).
This report and recommendation disposes of all matters referred to the
undersigned magistrate judge in the captioned matter.
ENTERED on February 5, 2026.
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