Marsh v. Commissioner of SSA et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
T. M.,1 )
)
Plaintiff, )
)
v. ) Case No. CIV-26-2774-CMS
)
FRANK BISIGNANO, )
Commissioner, )
Social Security Administration, )
)
Defendant. )
REPORT AND RECOMMENDATION
Before the Court is Plaintiff’s Application to Proceed in District Court Without
Prepaying Fees or Costs (“Application”). Doc. 2. This matter has been assigned to the
undersigned Magistrate Judge pursuant to In re: Social Security Cases, G.O. 23-1 (W.D.
Okla.) (eff. Jan. 6, 2023). After careful review, the undersigned recommends that the Court
deny the Application.
I. Discussion
The filing fee for a civil case in this Court is $405.00.2 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.”
1 The Court refers to Plaintiff by initials to protect Plaintiff’s privacy because of the
sensitive nature of medical and personal information disclosed in Social Security cases.
2 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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White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998) (citation modified). To succeed
on an application to proceed IFP, the movant must show “a financial inability to pay the
required filing fees.” Lister, 408 F.3d at 1312.
A. Factors for consideration
Factors the Court may consider in exercising its discretion include “whether the
complaint is 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) (citation modified). Plaintiff appeals the
Commissioner of Social Security’s denial of benefits. Doc. 1. But even assuming the
complaint is not frivolous or malicious, the remaining factors weigh against granting
Plaintiff’s Application. Plaintiff is not a prisoner, so the special concerns attendant to
prisoner cases do not apply.
As to the financial-resources factor, the Court may consider both income and assets.
See Lister, 408 F.3d at 1311 (noting that an applicant’s income, assets, and expenses are
relevant for consideration of an IFP application). With respect to income, the Court
considers the degree to which a plaintiff’s monthly income exceeds her monthly
obligations. See Scherer v. Kansas, 263 F. App’x 667, 669 (10th Cir. 2008) (affirming
denial of IFP status, in part, because the plaintiff’s “monthly income exceeded his monthly
obligations by several hundred dollars”). In doing so, the Court also considers whether a
plaintiff’s monthly obligations are mandatory or discretionary. Brewer, 24 F. App’x at
979. And the Court considers a plaintiff’s household income. See, e.g., Freisinger o/b/o
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A.A.F. v. Dudek, No. CIV-25-104-CMS, 2025 WL 913637, at *1 (W.D. Okla. Feb. 19,
2025) (explaining a court considers the “income and assets of persons who financially
support” a plaintiff applying to proceed IFP) (R&R), adopted, 2025 WL 909238 (W.D.
Okla. Mar. 25, 2025); Fridman v. City of New York, 195 F. Supp. 2d 534, 537 (S.D.N.Y.
2002) (“In assessing an application to proceed in forma pauperis, a court may consider the
resources that the applicant has or can get from those who ordinarily provide the applicant
with the necessities of life, such as from a spouse, parent, adult sibling or other next friend.”
(citation modified)); Zhu v. Countrywide Realty Co., 148 F. Supp. 2d 1154, 1156 (D. Kan.
2001) (“Courts have found that the income and assets of close family members are relevant
to a determination of indigency under 28 U.S.C. § 1915.” (citation modified)); Williams v.
Spencer, 455 F. Supp. 205, 208 (D. Md. 1978) (explaining that, in determining whether
litigants are unable to pay, the court should consider resources “they have or can get”
(quoting Adkins v. E. I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948)). Here,
because Plaintiff’s household income includes that of her spouse, the Court considers that
financial resource in assessing Plaintiff’s inability to pay the filing fee.
B. Plaintiff’s financial information
The undersigned has carefully considered Plaintiff’s income, assets, and expenses
as listed on her Application. Plaintiff attests that she is unemployed and her spouse earns
$2,366.52 in gross monthly income. Doc. 2 at 1-2. Together she and her spouse have
approximately $477.00 in cash and $476.00 in a financial institution, and one vehicle
valued at approximately $6,000.00. Id. at 3-4.
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Plaintiff’s minor son relies on her for support. Id. at 4. Her monthly expenses total
approximately $1,216.00. Id. at 5-6. (Plaintiff lists $428.00 in food expenses that are
covered by food stamps, id. at 5; the amount of food stamps is not included in Plaintiff’s
income and the corresponding expense is not included in this total).
Considering the information provided in the Application, the undersigned
recommends the Court deny the Application. Plaintiff’s monthly household income
exceeds her monthly household expenses by approximately $1,120.00. Additionally,
Plaintiff states that she receives financial assistance from her mother and husband’s
grandfather, whose financial resources are not included in the Application. Id. at 6. “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.” 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).
As such, based on the information before the Court, the undersigned finds Plaintiff
has not shown “a financial inability to pay the required filing fees.” Lister, 408 F.3d at
1312; see also Raynor v. Wentz, 357 F. App’x 968, 969 (10th Cir. 2009) (denying a motion
to proceed IFP when “the documentation Plaintiff has provided does not indicate an
inability to pay the required filing fee”).
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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 Court not later than
November 3, 2026. See id. § 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).
ENTERED this 13th day of October, 2026.
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