United States District Court, N.D. Texas, Wichita Falls Division
KENNETH G. ROFFMAN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Ray, Jr., United States Magistrate Judge
the Court is Plaintiff's Motion for Leave to Proceed
In Forma Pauperis (ECF No. 2), filed February 10,
2017. This case was referred to the undersigned pursuant to
Special Order No. 3-251 on February 10, 2017. Denial of a
motion for leave to proceed in forma pauperis (IFP)
is a dispositive order to which the undersigned may only
issue a recommendation to United States District Judge Reed
O'Connor pursuant to Miscellaneous Order No. 6 of the
Northern District of Texas, Rule 2(a)(4)(b).
consideration of the pleadings and the applicable law, the
undersigned RECOMMENDS that Judge O'Connor DENY
Plaintiff's Motion for Leave to Proceed In Forma
Pauperis (ECF No. 2) and DISMISS the case without
initially filed his Complaint, through his attorney of record
Howard D. Olinsky, on February 10, 2017, seeking review of a
decision of the Commissioner of Social Security denying his
application for benefits. ECF No. 1. Together with this
Complaint, Plaintiff filed a Motion for Leave to Proceed
In Forma Pauperis (ECF No. 2), in which he declared
that he is unable to pay the costs of the proceedings and
requested that the prepayment of costs be waived pursuant to
28 U.S.C. § 1915.
Order entered on February 13, 2017, the Court found that
Plaintiff had the financial ability to pay the filing fee in
this case without “suffering undue hardship.” ECF
No. 7. Therefore, the Court found that Plaintiff was not
entitled to proceed in forma pauperis, ordered
Plaintiff to pay the filing fee within fourteen days of the
Court's Order, and informed Plaintiff that his failure to
do so would result in the case being subject to dismissal
without prejudice pursuant to Rule 41(b) of the Federal Rules
of Civil Procedure. Id. at 2. To date, Plaintiff has
failed to pay the required filing fee.
Legal Standard and Analysis
is no absolute right to be allowed to proceed in forma
pauperis in civil matters; rather it is a privilege
extended to those unable to pay filing fees when the action
is not frivolous or malicious.” Startti v. United
States, 415 F.2d 1115, 1116 (5th Cir. 1969) (citing 28
U.S.C. § 1915). 28 U.S.C. § 1915(a), the statute
governing proceedings in forma pauperis, “is
intended to provide access to federal courts for plaintiffs
who lack the financial resources to pay any part of the
statutory filing costs.” Prows v. Kastner, 842
F.2d 138, 140 (5th Cir. 1988). “At the same time, a
district court may order users of the courts to pay a portion
of the filing fees when they are financially able to do
so.” Id. (citing Williams v. Estelle,
681 F.2d 946 (5th Cir. 1982)). “To determine whether a
particular order causes undue financial hardship, a court
must examine the financial condition of the in forma
pauperis applicant. This entails a review of other
demands on individual plaintiffs' financial resources,
including whether the expenses are discretionary or
mandatory.” Prows, 842 F.2d at 140.
Ultimately, the decision whether to grant a request to
proceed in forma pauperis is within the discretion
of the district court. Williams, 681 F.2d at 947
(citing Green v. Estelle, 649 F.2d 298, 302 (5th
Cir. 1981)); Woodards v. Traurig, No.
3:11-CV-2678-L-BH, 2011 WL 6934966, at *1 (N.D. Tex. Nov. 22,
2011), report and recommendation adopted, No.
3:11-CV-2678-L-BH, 2011 WL 6934965 (N.D. Tex. Dec. 30, 2011).
financial affidavit, Plaintiff declares that he has an
average monthly income of $4, 200, his spouse has an average
monthly income of $1, 500, and together he and his wife have
average monthly expenses of $5, 398 with three dependents.
ECF No. 2 at 1-2, 5; see also Dow v. Colvin, No.
4:13-CV-299-A BJ, 2013 WL 1952092, at *1 (N.D. Tex. Apr. 15,
2013) (it is appropriate to consider a spouse's income
when evaluating the total monetary resources available to
assist a plaintiff). Plaintiff further states that he and his
wife own real estate and property assets totaling $202, 000.
ECF No. 2 at 3. Plaintiff's financial affidavit shows
that he “will not be barred from the federal courts due
to [his] lack of financial resources.” Williams v.
U.S. Postal Serv., No. 3:10-CV-435-WHB-LRA, 2010 WL
3828922, at *1 (S.D.Miss. Aug. 10, 2010), report and
recommendation adopted, No. 3:10-CV-435-WHB-LRA, 2010 WL
3827944 (S.D.Miss. Sept. 24, 2010). Although Plaintiff and
his wife have three dependents, the Department of Health and
Human Services poverty guidelines for 2017 establish a
guideline for a five-person household of $28, 780. Dep't
of Health & Human Serv., Poverty Guidelines (Jan. 2017),
Plaintiff's household income is far above that threshold,
the application shows that Plaintiff has sufficient resources
available to pay the filing fee.” Dow, 2013 WL
1952092 at *1. Though the court in Dow applied the
2013 poverty guidelines to determine the income threshold,
this Court applies the 2017 guidelines for this current
action. After consideration of the Plaintiff's sworn
affidavit and financial circumstances of his family, the
undersigned finds that Plaintiff has not demonstrated that he
lacks the financial ability to pay the costs of the
proceeding without suffering undue hardship. See Webster
v. Chertoff, No. 3:06-CV-0438-M, 2006 WL 757875, at *1
(N.D. Tex. Mar. 20, 2006) (quoting Prows, 842 F.2d
Plaintiff has the financial ability to pay the costs of the
proceeding without suffering undue hardship, the undersigned
RECOMMENDS that Judge O'Connor DENY Plaintiffs Motion for
Leave to Proceed In Forma Pauperis (ECF No. 2) and
DISMISS the case without prejudice.
of this findings, conclusions, and recommendation shall be
served on all parties in the manner provided by law. Any
party who objects to any part of this findings, conclusions,
and recommendation must file specific written objections
within 14 days after being served with a copy. See
28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b)(1). In
order to be specific, an objection must identify the specific
finding or recommendation to which objection is made, state
the basis for the objection, and specify the place in the
magistrate judge's findings, conclusions, and
recommendation where the disputed determination is found. An
objection that merely incorporates by reference or refers to
the briefing before the magistrate judge is not specific.
Failure to file specific written objections will bar the
aggrieved party from appealing the factual findings and ...