Collier v. DeJoy et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CORETTA COLLIER, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-24-1224-D
)
LOUIS DE JOY, 	)
)
Defendant. 	)
REPORT AND RECOMMENDATION
Plaintiff has filed an Application To Proceed In District Court Without Prepaying
Fees or Costs (In Forma Pauperis (“IFP”)). (Doc. 2). Chief United States District Judge
Timothy D. DeGiusti referred the motion to the undersigned Magistrate Judge consistent
with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 4).
The filing fee in civil cases is presently $405.00.1 	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
1 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.
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not just to prisoners.” 	Lister v. Dep’t of the Treasury, 408 F.3d 1309, 1312 (10th Cir.
2005).
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. 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) (citation omitted).
Plaintiff states that she receives $1,495.00 per month as take-home pay from her job
as well as an additional $720-$900 of pre-tax income per month from part-time work.
(Doc. 2, at 1). She states that she has monthly expenses of $1,550. (Id. at 2). Even taking
into account potential taxes on her part-time work, Plaintiff’s monthly income exceeds her
monthly expenses by over $405.00. 	And although Plaintiff identifies credit card debt of
$2,360.00, (id.), the bank account statement she provided does not indicate any payment
on such debt. (Id. at Ex. 2, at 4-7). Thus, “the 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). 	While the court does not
suggest that [Plaintiff] is wealthy or has lots of money to spend, [Plaintiff] does appear to
have discretionary income . . . . 	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 F. App’x 780 (10th Cir. 2010).
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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 F. App’x 34, 35 (10th Cir. 2006).
RECOMMENDATION
For the foregoing reasons, the undersigned recommends that the court DENY
Plaintiff’s Application for Leave to Proceed IFP (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, that this
action be dismissed without prejudice to the refiling. LCvR 3.3(e).
Plaintiff is advised of her right to file an objection to this Report and
Recommendation with the Clerk of this Court by December 18, 2024, in accordance
with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). Failure to make timely objection
waives her 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.
ENTERED this 27th day of November, 2024.
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