Sullivan v. Pacheco et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JACK SULLIVAN, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-26-114-HE
)
CARMEN PACHECO et al., 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
Before the Court is Plaintiff’s motion for leave to proceed in forma
pauperis (IFP). Doc. 2.1 United States District Judge Joe Heaton referred the
IFP 	motion 	to 	the 	undersigned 	Magistrate 	Judge 	under 	28 	U.S.C.
§ 636(b)(1)(B), (C). Doc. 3.
I. 	Discussion.
On January 23, 2026, Plaintiff filed an IFP motion with the Court. Doc.
2. On January 28, 2026, the Court ordered Plaintiff to cure the motion by
providing the Court with the specific information listed on the IFP application
by February 18, 2026. Doc. 4. The Clerk of Court mailed a copy of the order
and an IFP form to Plaintiff at the address he provided to the Court. Doc. 4
1 	Citations to a court document are to its electronic case filing designation
and pagination. Except for capitalization, quotations are verbatim unless
otherwise indicated.
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(Staff notes). To date, Plaintiff has not responded to the Court’s order to cure.
The Postmaster returned the order to cure to this Court as undeliverable on
February 19, 2026. See Doc. 5 (stating “Return to Sender,” “No Such Number,”
“Unable to Forward”). This Court’s Local Rules require a litigant to keep the
Court 	updated 	on 	their 	current 	address. 	See 	LCvR5.4. 	Plaintiff 	has 	not
submitted a change of address form to the Court.
The filing fee in civil cases is $405.00.2 A court has discretion under 28
U.S.C. § 1915(a) in deciding whether to grant a civil litigant permission to
proceed IFP. Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005);
see also Grimes v. TCF Bank, 769 F. App’x 659, 660 (10th Cir. 2019) (reviewing
a district court order denying an in forma pauperis application for an abuse of
discretion). “Section 1915(a) applies to all persons applying for [in forma
pauperis] status, and not just to prisoners.” Lister, 408 F.3d at 1312.
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. Factors the Court may
consider 	in 	exercising 	its 	discretion 	include: 	“whether 	the 	complaint 	is
2 	The filing fee is $350.00. See 28 U.S.C. § 1914(a). In addition, an
administrative fee of $55.00 must be paid. See Judicial Conf. Sched. of Fees,
Dist. Ct. Misc. Fee Sched. ¶ 14.
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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) (internal
citations omitted).
Turning to the first factor, Plaintiff, proceeding pro se, sues Carmen
Pacheco and Sergio Jimenez for “delay[ing] the proceedings, in violation of 42
U.S.C. 1983.” Doc. 1, at 1. Plaintiff provides no further information to the
Court. The undersigned therefore concludes the action appears to be frivolous.
As to the second factor, Plaintiff is not a prisoner. So the undersigned
does not find that the special concerns attendant to prisoner cases apply.
For the final factor, the Court is unable to determine Plaintiff’s financial
circumstances as Plaintiff did not provide the Court with sufficient information
as required for IFP status. The Court ordered Plaintiff to cure his IFP
application, but he did not respond to the Court’s order and has provided no
further information to the Court.
II. 	Recommendations.
Because Plaintiff has not provided information to show he is unable to
pay the filing fee, the undersigned recommends the Court deny Plaintiff’s IFP
motion. Doc. 2. The undersigned further recommends that the Court dismiss
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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 days of any order
adopting this Report and Recommendation. See LCvR3.3(e).
The undersigned advises Plaintiff of his right to object to this Report and
Recommendation. See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). Any
such objection must be filed with the Clerk of the Court on or before March 17,
2026. The Court further advises Plaintiff that failure to make timely objection
to this Report and Recommendation waives the right to appellate review of the
factual and legal issues addressed herein. 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 in the captioned matter.
ENTERED this 24th day of February, 2026.
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