Wiley v. Thirty5 West New LP LLC et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
SHARI A. WILEY, )
)
Plaintiff, )
)
v. ) Case No. CIV-25-1399-JD
)
THIRTY5 WEST NEW LP, LLC, et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff Shari A. Wiley filed a Complaint and a separate Application to Proceed in
District Court without Prepaying Fees or Costs (“Application”). United States District
Judge Jodi W. Dishman referred the Application, Doc. 2, to the undersigned Magistrate
Judge in accordance with 28 U.S.C. § 636(b)(1)(B)-(C). After reviewing Plaintiff’s
request, the undersigned recommends that the Court deny the Application.
I. Discussion
The filing fee for a civil case in this Court is $405.00.1 Courts have discretion in
deciding whether to grant a civil litigant permission to proceed in forma pauperis (“IFP”).
28 U.S.C. § 1915(a); 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)). To succeed on an application
1 The total filing fee includes a base fee of $350.00 plus 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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to proceed IFP, the movant must show “a financial inability to pay the required filing fees.”
Lister, 408 F.3d at 1312.
The undersigned has carefully considered Plaintiff’s income, assets, and expenses
as listed on her Application. Plaintiff attests that her take-home pay is $1,198 every two
weeks, which equates to approximately $2,596 per month. Doc. 2 at 1. Plaintiff states she
has no assets other than $4.00 in cash or a bank account. Id. at 2. Plaintiff further attests
she has $1,736 in monthly expenses: (1) $1,450 in rent and (2) $286 in utilities. Id.
Plaintiff also reports that she supports two children and contributes “100%” to their
support, but does not specify a dollar amount for this support. Id. Finally, Plaintiff reports
that she owes approximately $30,000 in debt to the Department of Education, but no
payments are included in her monthly expenses. Id. (requiring Plaintiff to list any loan
payments).
Based on the information provided in the Application, the undersigned recommends
the Court deny the Application. Plaintiff reports monthly take-home pay that exceeds her
monthly expenses by several hundred dollars. See Scherer v. Kansas, 263 F. App’x 667,
669 (10th Cir. 2008) (affirming denial of IFP status, in part, because plaintiff’s “monthly
income exceeded his monthly obligations by several hundred dollars”); Brewer v. City of
Overland Park Police Dep’t, 24 F. App’x 977, 979 (10th Cir. 2002) (denying IFP status
because plaintiff’s “monthly income exceeds his monthly expenses by a few hundred
dollars”). “While this Court does not suggest that the plaintiff is wealthy or has lots of
money to spend, [she] does appear to have discretionary income and/or assets and it appears
that she has the ability to spend her discretionary funds on filing fees if [she] desires.”
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Williams v. Oklahoma, No. CIV-16-163-R, 2016 WL 7665657, at *2 (W.D. Okla. Feb. 23,
2016) (citation modified) (R&R), adopted, 2016 WL 7665658 (W.D. Okla. Apr. 4, 2016),
aff’d, 667 F. App’x 733 (10th Cir. 2016). The undersigned therefore finds that Plaintiff
has not shown “a financial inability to pay the required filing fees.” Lister, 408 F.3d at
1312.2
II. Recommendation and Notice of Right to Object
For the foregoing reasons, the undersigned recommends that the Court DENY
Plaintiff’s Application to Proceed in District Court without Prepaying Fees or Costs,
Doc. 2. The undersigned further recommends that if Plaintiff does not pay the $405.00
filing fee in full to the Clerk of Court within 21 days of any order adopting this Report and
Recommendation, this action be dismissed without prejudice to refiling, pursuant to Local
Civil Rule 3.3(e).
Plaintiff is advised of her right to object to this Report and Recommendation. See
28 U.S.C. § 636. Any objection must be filed with the Clerk of this Court by December 16,
2025. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to object timely waives
the right to appellate review of the factual and legal issues addressed in this Report and
Recommendation. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
2 The undersigned notes that Magistrate Judge Suzanne Mitchell recommended yesterday
that the Court deny a very similar application to proceed IFP by Plaintiff Shane A. Wiley
in Wiley v. Thirty5 West New LP, LLC, No. CIV-25-1400-R, Doc. 5 (W.D. Okla. Nov. 24,
2025).
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This Report and Recommendation disposes of all issues referred to the undersigned
Magistrate Judge in this matter.
ENTERED this 25th day of November, 2025.
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