5:26-cv-00072•Hooker v. Smith et al
Testo completo
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.” Case 5:26-cv-00072-G Document 6 Filed 02/05/26 Page 1 of 4
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. Case 5:26-cv-00072-G Document 6 Filed 02/05/26 Page 2 of 4
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. Case 5:26-cv-00072-G Document 6 Filed 02/05/26 Page 3 of 4
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. Case 5:26-cv-00072-G Document 6 Filed 02/05/26 Page 4 of 4
Ti chiedi come si applica questo testo alla tua situazione?
Consulenza gratuita, senza impegno
Descrivi la tua situazione. Il nostro team ti ricontatterà via e-mail per la tua consulenza.
Continua la tua ricerca in ChatGPT o Claude
Collega Omnilex per cercare nel corpus legale dal tuo assistente IA.