Timmons v. Spirit Aerosystems

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PRESTON TAYLOR TIMMONS,
Plaintiff,
v.
SPIRIT AEROSYSTEMS,
Defendant.
Case No. 25-1214-EFM-BGS
REPORT AND RECOMMENDATION
This matter comes before the Court on Plaintiff Preston Timmons’s motion to proceed
without prepayment of fees, which is a motion requesting leave for Plaintiff to proceed in forma
pauperis (IFP). Doc. 3. Under 28 U.S.C. § 1915(a), a federal court may authorize commencement
of a civil action “without prepayment of fees or security therefor, by a person who submits an
affidavit that … the person is unable to pay such fees or give security therefor.” To succeed on an
IFP motion, “the movant must show a financial inability to pay the required filing fees.” Lister v.
Dep’t of 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).
The decision to grant or deny IFP status under § 1915 lies within the district court’s sound
discretion. Engberg v. Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001).
Upon reviewing the financial affidavit provided by Plaintiff, the Court found that additional
information was needed. To that end, the Court ordered Plaintiff to file a supplemental financial
affidavit to ensure that all his income and approximate bank account balances were accounted for as
set forth in the order. See Doc. 4. The Court provided a deadline of October 31, 2025, to file the
supplemental financial affidavit and cautioned Plaintiff that failure to comply with the order may
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result in the undersigned recommending to the District Judge that his IFP motion be denied. Id., at
2. Plaintiff has failed to file any supplemental affidavit and the time to comply with the court order
has passed. Therefore, the Court will consider his IFP request based on the financial affidavit he
originally provided.
In the interest of keeping Plaintiff’s personal finances confidential, the Court will not divulge
the specific numbers contained within the financial affidavit. Plaintiff indicates he is single and
unmarried. He indicates that he is currently employed but fails to list his take home income or any
cash on hand he has in any bank accounts. Plaintiff provides that he receives social security and
other government benefits (with specific amounts). His financial obligations are modest.
The problem here is two-fold. One, he does not provide all the information required. And
two, his financial affidavit demonstrates a positive net monthly income, even without the addition of
his employment income. As such, the information provided does not establish he cannot pay the
required filing fees. See, e.g., Otudeko v. Topeka Pub. Sch., No. 24-4082-DDC-RES, 2024 WL 5110073,
at *1 (D. Kan. Aug. 30, 2024), report and recommendation adopted, No. 24-4082-DDC-RES, 2024 WL
5106712 (D. Kan. Dec. 13, 2024) (recommending that the plaintiff’s motion to proceed IFP be
denied); Young v. Schmidt, No. 20-1268-EMF-GEB, 2021 WL 7710878, at *2 (D. Kan. Apr. 8, 2021),
report and recommendation adopted, No. 20-1268-EFM, 2021 WL 7710876 (D. Kan. May 5, 2021) (same);
Martinez Olivares v. Harvestland Constructors Inc., No. 24-2191-HLT-ADM, 2024 WL 3071090, at *1 (D.
Kan. May 6, 2024), report and recommendation adopted, No. 2:24-CV-02191-HLT-ADM, 2024 WL
3066208 (D. Kan. June 20, 2024) (same); see also, e.g., Epson v. Astrue, No. 08-2349-CM, 2008 WL
4083013, at *1 (D. Kan. Aug. 29, 2008) (affirming a report and recommendation that recommended
denying IFP status where the plaintiff's affidavit demonstrated a positive monthly income).
Accordingly, the Court concludes he is not entitled to proceed in forma pauperis.
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The Tenth Circuit has held that a magistrate judge does not have the authority under 28.
U.S.C. § 636 to deny a plaintiff’s motion to proceed IFP. Lister v. Dep't of Treasury, 408 F.3d 1309,
1312-13 (10th Cir. 2005). The undersigned Magistrate Judge therefore recommends that Plaintiff’s
motion to proceed in forma pauperis be denied and directs Plaintiff to pay the filing fee within
thirty days of an order on this Report and Recommendation. The Magistrate Judge further
recommends that if Plaintiff does not pay the required filing fee within thirty days, this case be
dismissed without prejudice.
IT IS ORDERED that a copy of this recommendation shall be sent to Plaintiff Preston
Timmons via certified mail. Pursuant to 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b)(2), and D. Kan.
Rule 72.1.4(b), Plaintiff may file written objections to this Report and Recommendation within
fourteen days after being served with a copy. If Plaintiff fails to file objections within the fourteen-
day period, no appellate review of the factual and legal determinations in this report and
recommendation will be allowed by any court. See In re Key Energy Res. Inc., 230 F.3d 1197, 1199-
1200 (10th Cir. 2000).
IT IS SO RECOMMENDED.
Dated November 4, 2025, at Wichita, Kansas.
/s/ B ROOKS S EVERSON
Brooks G. Severson
United States Magistrate Judge
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