of the Geiger Family v. Ogden

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
STEVEN W. OF THE GEIGER 	)
FAMILY, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-26-00057-JD
)
RICHARD C. OGDEN, 	)
)
Defendant. 	)
ORDER
Before the Court is the Report and Recommendation (“R. & R.”) of United States
Magistrate Judge Suzanne Mitchell. [Doc. No. 6]. Plaintiff filed timely objections. [Doc.
No. 7]. Upon review and consideration, the Court accepts the R. & R.
Plaintiff, proceeding pro se, filed an application to proceed in forma pauperis
(“IFP”). [Doc. No. 2]. In accordance with 28 U.S.C. § 636, the Court referred the
application to Judge Mitchell. [Doc. No. 3]. Judge Mitchell found that Plaintiff provided
“incomplete information” about his financial situation in support of his application and
ordered Plaintiff to “provide the Court with more detailed information about his financial
situation, including any spousal or other sources of income[.]” [Doc. No. 4 at 2]. The
Court provided Plaintiff with the forms necessary to comply with the order. [Id.]. In
response to Judge Mitchell’s order, Plaintiff filed an Affidavit of Indigency, in which he
stated he is unable to pay the filing fee. [Doc. No. 5 at 1]. Judge Mitchell then issued the
R. & R., recommending that the Court deny Plaintiff’s IFP application and dismiss the
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action without prejudice to refiling if Plaintiff does not pay the $405.00 filing fee in full
to the Clerk of Court within twenty-one (21) days of its order. [Doc. No. 6 at 4].
The R. & R. weighed the factors discussed in Lister v. Department of Treasury and
Brewer v. City of Overland Park Police Department and concluded that they did not
support granting Plaintiff’s application. [Id. at 1–3 (citing Lister, 408 F.3d 1309, 1312
(10th Cir. 2005) and Brewer, 24 F. App’x 977, 979 (10th Cir. 2002))]. Specifically, the R.
& R. found the following factors support denying Plaintiff’s application: (1) that
Plaintiff’s case is likely to be frivolous because he is suing a judge who is immune to
suits for money damages against him in his judicial capacity, (2) Plaintiff is not a
prisoner, and (3) Plaintiff did not provide specific financial information about the amount
of his income or the nature of his assets. [Id. at 2–4]. The R. & R. advised Plaintiff of his
right to object by March 3, 2026, and that failure to file a timely objection would waive
the right to appellate review of the factual and legal issues in the R. & R. [Id. at 4].
Plaintiff filed objections to the R. & R., which the Court will address below. [Doc. No. 7].
“[A] party’s objections to the magistrate judge’s report and recommendation must
be both timely and specific to preserve an issue for de novo review by the district court or
for appellate review.” United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir.
1996). The Court reviews de novo the objected-to portions of the R. & R. See 28 U.S.C.
§ 636(b)(1) (“A judge of the court shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations to which objection is
made.”). The Court will construe Plaintiff’s objections liberally because he is proceeding
pro se, but the Court cannot serve as Plaintiff’s advocate. See Hall v. Bellmon, 935 F.2d
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1106, 1110 (10th Cir. 1991).
Plaintiff first objects to the R. & R. on the basis that the Court assumes Defendant
Richard Ogden is a judge. [Doc. No. 7 at 1–2]. The R. & R. does not assume Defendant is
a judge but instead proceeds on the basis stated by Plaintiff in his complaint, in which
Plaintiff identifies Defendant as a district judge. [Doc. No. 1 at 2]. The Tenth Circuit has
indicated that “in order to succeed on a motion to proceed IFP, the movant must show a
financial inability to pay the required filing fees, as well as the existence of a reasoned,
nonfrivolous argument on the law and facts in support of the issues raised in the action.”
Lister, 408 F.3d at 1312. Accordingly, in assessing whether Plaintiff has asserted
nonfrivolous arguments in support of his claims, the R. & R. examined his complaint and
the factual allegations made therein, including that Defendant is a district court judge.
Plaintiff also objects to the R. & R.’s conclusion that Plaintiff’s claims are likely
frivolous due to Defendant’s judicial immunity on the basis that the R. & R. “assumes”
Defendant is “a lawful judicial officer” acting “within lawful jurisdiction.” [Doc. No. 7 at
2]. Again, the R. & R.’s basis for concluding Defendant is a judge is Plaintiff’s own
complaint. The R. & R. did not conclude that immunity would definitively apply but
instead found Plaintiff’s Complaint “likely to be frivolous.” [Doc. No. 6 at 2]. Similarly,
Plaintiff states that the R. & R.’s “frivolous determination” is premature. [Doc. No. 7 at
4]. To the extent Plaintiff disagrees with the determination, Plaintiff had the opportunity,
via his objections, to argue why Defendant would not receive judicial immunity.
Plaintiff next objects to the R. & R.’s conclusion that “Plaintiff, through his vague
statements, has not provided enough information to demonstrate he is financially unable
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to pay the required filing fee. 28 U.S.C. § 1915(a).” [Doc. No. 6 at 4]. Plaintiff states that
his affidavit is sufficient to establish his indigency. [Doc. No. 7 at 2]. As the R. & R.
explained:
In [his] affidavit, Plaintiff states he is unable to pay because he is either
“unemployed or underemployed.” He states he has insufficient assets but
does not describe his actual assets. He admits he has an income but does
not divulge the amount of his income. He merely explains he uses his
income to pay for necessities. He implies he owns real property, stocks,
bonds, or other liquid assets but it would be a hardship to sell them.
[Doc. No. 6 at 3 (internal citations omitted)]. In order to authorize Plaintiff to proceed
IFP, the Court must consider an affidavit which complies with the requirements of 28
U.S.C. § 1915(a)(1), which requires “an affidavit that includes a statement of all assets
such [person] possesses that the person is unable to pay such fees or give security
therefor.” Plaintiff’s affidavit fails to list his assets in a manner that the Court can
sufficiently determine if he is unable to pay the filing fee. Instead, Plaintiff states he has
income that he uses for basic necessities and that he does “not own any real property,
stocks, bonds, or other liquid assets that could be sold to pay court costs without causing
undue hardship.” [Doc. No. 5 at 2]. Additionally, the Court previously ordered Plaintiff to
disclose “more detailed information about his financial situation,” including whether he
has income from a spouse or other sources of income. [Doc. No. 4 at 2]. The Court also
advised Plaintiff that he had not disclosed the amount of SNAP benefits he receives. [Id.
at 1]. Plaintiff did not address these issues in his affidavit.
Plaintiff also objects to the R. & R. on the basis that Judge Mitchell lacks authority
to rule on his IFP status. [Doc. No. 7 at 3]. As cited by Judge Mitchell in her R. & R., a
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district judge has statutory authority to refer motions to magistrate judges for proposed
findings of fact and recommendations of disposition. 28 U.S.C. § 636(b)(1)(B), (C). The
Court then reviews the proposed findings of fact and recommendations in accordance
with the standards outlined above and enters an order for final disposition of the motion.
Plaintiff also questions Judge Mitchell’s authority to request Plaintiff’s financial
information. [Doc. No. 7 at 3]. As outlined above, 28 U.S.C. § 1915(a)(1) requires
Plaintiff to submit a statement of his assets. Courts typically require the affidavits to
contain enough information for the Court to review the applicant’s expenses and income.
Raynor v. Wentz, 357 F. App’x 968, 969 (10th Cir. 2009) (unpublished) (concluding the
district court did not abuse its discretion in denying IFP status because “the IFP motion
contained almost no information that would allow it to properly review Plaintiff’s
expenses and income”). Judge Mitchell, therefore, was well within her authority to order
Plaintiff to produce more information to support his IFP application.
In his objections, Plaintiff includes a “request for clarification regarding federal
registration or disclosure requirements.” [Doc. No. 7 at 3]. The Court is unclear regarding
the exact nature of Plaintiff’s request but does not interpret it as a relevant basis for
objecting to the R. & R. Plaintiff also requests clarification regarding “the Magistrate
Judge’s ability to disclose certain records or information.” [Doc. No. 7 at 4]. The purpose
of allowing parties to file objections to magistrate judges’ reports is to allow the district
court to immediately correct errors in the report. 2121 E. 30th St., 73 F.3d at 1059. Thus,
to the extent Plaintiff requests information from the Court, rather than disputes the
findings and conclusions of the R. & R., those requests are improperly presented in
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Plaintiff’s objections. See also Fed. R. Civ. P. 7(b)(1).
For these reasons, the Court overrules Plaintiff’s objections. Therefore, the Court
ACCEPTS the Report and Recommendation [Doc. No. 6] and DENIES Plaintiff’s IFP
application [Doc. No. 2]. Pursuant to Local Civil Rule 3.3(e), the Court will dismiss this
action without prejudice to refiling if Plaintiff does not pay the $405.00 filing fee in full
to the Clerk of the Court within twenty-one (21) days of this order, or by March 23,
2026.
IT IS SO ORDERED this 2nd day of March 2026.
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