Diaz v. Commissioner of Social Security Administration et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
S. E. D.,1 )
)
Plaintiff, )
)
v. ) Case No. CIV-26-520-CMS
)
FRANK BISIGNANO, )
Commissioner, )
Social Security Administration, )
)
Defendant. )
REPORT AND RECOMMENDATION
Before the Court is Plaintiff’s Application to Proceed in District Court Without
Prepaying Fees or Costs (“Application”). Doc. 2. This matter has been assigned to the
undersigned Magistrate Judge pursuant to In re: Social Security Cases, G.O. 23-1 (W.D.
Okla.) (eff. Jan. 6, 2023). After careful review, the undersigned recommends that the Court
deny the Application.
I. Analysis
The filing fee for a civil case in this Court is $405.00.2 Courts have discretion in
deciding whether to grant a civil litigant permission to proceed in forma pauperis (“IFP”).
28 U.S.C. § 1915(a); Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005).
1 The Court refers to Plaintiff by initials to protect Plaintiff’s privacy because of the
sensitive nature of medical and personal information disclosed in Social Security cases.
2 The total filing fee includes a base fee of $350.00 plus an administrative fee of $55.00.
See 28 U.S.C. § 1914(a); Judicial Conf. Sched. of Fees, Dist. Ct. Misc. Fee Sched. ¶ 14.
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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) (citation modified). To succeed
on an application to proceed IFP, the plaintiff must show “a financial inability to pay the
required filing fees.” Lister, 408 F.3d at 1312.
A. Factors for consideration
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) (citation modified). Plaintiff appeals the
Commissioner of Social Security’s denial of benefits. Doc. 1. But even assuming the
complaint is not frivolous or malicious, the remaining factors weigh against granting
Plaintiff’s Application. Plaintiff is not a prisoner, so the special concerns attendant to
prisoner cases do not apply.
As to the financial-resources factor, the Court may consider both income and assets.
See Lister, 408 F.3d at 1311 (noting that an applicant’s income, assets, and expenses are
relevant for consideration of an IFP application). With respect to income, the Court
considers the degree to which Plaintiff’s monthly income exceeds her monthly obligations.
See Scherer v. Kansas, 263 F. App’x 667, 669 (10th Cir. 2008) (affirming denial of IFP
status, in part, because plaintiff’s “monthly income exceeded his monthly obligations by
several hundred dollars”). And in considering income, the Court considers Plaintiff’s
household income. Here, because Plaintiff relies on her son’s disability payments for
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financial support, the Court considers that financial resource in assessing Plaintiff’s
inability to pay the filing fee. See, e.g., Freisinger o/b/o A.A.F. v. Dudek, No. CIV-25-104-
CMS, 2025 WL 913637, at *1 (W.D. Okla. Feb. 19, 2025) (explaining a court considers
the “income and assets of persons who financially support” a plaintiff applying to proceed
IFP) (R&R), adopted, 2025 WL 909238 (W.D. Okla. Mar. 25, 2025); Fridman v. City of
New York, 195 F. Supp. 2d 534, 537 (S.D.N.Y. 2002) (“In assessing an application to
proceed in forma pauperis, a court may consider the resources that the applicant has or can
get from those who ordinarily provide the applicant with the necessities of life, such as
from a spouse, parent, adult sibling or other next friend.” (citation modified)); Zhu v.
Countrywide Realty Co., 148 F. Supp. 2d 1154, 1156 (D. Kan. 2001) (“Courts have found
that the income and assets of close family members are relevant to a determination of
indigency under 28 U.S.C. § 1915.” (citation modified)); Williams v. Spencer, 455 F. Supp.
205, 208 (D. Md. 1978) (explaining that, in determining whether litigants are unable to
pay, the court should consider resources “they have or can get” (quoting Adkins v. E. I.
DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948)).
B. Plaintiff’s financial resources
Plaintiff is employed and receives monthly income of approximately $2,166.67.
Doc. 2 at 1. She also supports her son, who receives $995.00 a month in disability benefits.
Id. As such, her monthly income is approximately $3,161.67. Plaintiff also lists monetary
assets of $57.00 plus approximately $600.00 in equity in her 2014 Jeep Cherokee. Id. at 2.
Plaintiff’s total monthly debts amount to $2,622.00. Id. As such, Plaintiff’s
monthly income exceeds her debts by approximately $539.67. “While this Court does not
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suggest that [Plaintiff] is wealthy or has lots of money to spend, she does appear to have
discretionary income and/or assets. It appears that she has the ability to spend her
discretionary funds on filing fees if she desires.” Lewis v. Ctr. Mkt., No. CIV. 09-306
JB/RHS, 2009 WL 5217343, at *3 (D.N.M. Oct. 29, 2009), aff’d, 378 F. App’x 780 (10th
Cir. 2010); see also Brewer, 24 F. App’x at 979 (affirming denial of IFP status because
plaintiff’s “monthly income exceeds his monthly expenses by a few hundred dollars”). The
undersigned therefore finds that Plaintiff has not shown “a financial inability to pay the
required filing fees.” Lister, 408 F.3d at 1312.
II. Recommendation and Notice of Right to Object
For the foregoing reasons, the undersigned recommends that the Court DENY
Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs.
Doc. 2. The undersigned further recommends that if Plaintiff does not pay the $405.00
filing fee in full to the Clerk of the Court within 21 days of any order adopting this Report
and Recommendation, this action be dismissed without prejudice to refiling, pursuant to
Local Civil Rule 3.3(e).
Plaintiff is advised of her right to object to this Report and Recommendation. See
28 U.S.C. § 636. Any objection must be filed with the Clerk of this Court by April 6, 2026.
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to object timely waives the
right to appellate review of the factual and legal issues addressed in this Report and
Recommendation. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
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ENTERED this 23rd day of March, 2026.
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