Wilson v. Saint Francis Community Services

Filing 7

MEMORANDUM AND ORDER denying 3 Motion for Leave to Proceed in forma pauperis; adopting Report and Recommendations re 5 Report and Recommendations. IT IS FURTHER ORDERED that plaintiff prepay the full filing fee of $400 within 30 days fo r this action to proceed. Failure to pay the filing fee within 30 days, by March 16, will result in dismissal of this action without prejudice. Signed by District Judge Carlos Murguia on 2/14/18. Mailed to pro se party Tyrolia DeJuan Wilson by regular and certified mail. (Certified Tracking Number: 7015 0920 0001 7045 9024) (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TYROLIA DEJUAN WILSON,
Plaintiff,
v.

Case No. 18-2027

SAINT FRANCIS COMMUNITY SERVICES,
Defendant.

MEMORANDUM AND ORDER
On January 30, 2018, United States Magistrate Judge Teresa J. James issued a Report and
Recommendation (Doc. 5). The report recommends that this court deny plaintiff Tyrolia DeJuan
Wilson’s Motion for Leave to Proceed Without Prepayment of Fees (Doc. 3) because the court found
that plaintiff has sufficient resources to pay the filing fee. Plaintiff had fourteen days, until February 13,
2018, to file written objections to the Report and Recommendation. Plaintiff did not file any objections.
The undersigned’s review of a report and recommendation on a dispositive issue requires de novo
review of any part of the magistrate judge’s recommendation that is objected to. Fed. R. Civ. P. 72(b)(3).
Because plaintiff did not object, the court need not undertake a de novo review of her motion to proceed
in forma pauperis. In any event, the court agrees with Judge James’s review of plaintiff’s affidavit and
motion and the reasoning set forth in the report and recommendation and therefore adopts it in full.
REPORT AND RECOMMENDATION
NOTICE
Within fourteen (14) days after a party is served with a copy of this Report and
Recommendation, that party may, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.
72(b)(2), file written objections to this Report and Recommendation. A party must file
any objections within the fourteen-day period if that party wants to have appellate
review of the proposed findings of fact, conclusions of law, or recommended

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disposition. If no objections are timely filed, no appellate review will be allowed by any
court.
REPORT AND PROPOSED FINDINGS
Plaintiff commenced this action pro se on January 18, 2018 by filing a
Complaint (ECF No. 1) alleging employment discrimination on the basis of disability,
HIPAA violation, retaliation and harassment against Saint Francis Community Services.
Compl. at 1-2, ECF No. 1. This action stems from allegedly discriminatory and
retaliatory conduct during Plaintiff’s employment as a substance abuse counselor, a
position he still holds with Saint Francis Community Services. Id. at 3-4. This matter
comes before the Court on Plaintiff’s Motion to Proceed without Prepayment of Fees
(ECF No. 3).
Section 1915 of Title 28 of the United States Code allows the court to authorize
the commencement of a civil action “without the prepayment of fees or security
therefor, by a person who submits an affidavit…[if] the person is unable to pay such
fees or give security therefor.” To succeed on a motion to proceed in forma pauperis,
the movant must show a financial inability to pay the required filing fees. The decision
to grant or deny in forma pauperis status under section 1915 lies within the “wide
discretion” of the trial court.
Based on the information contained in his Affidavit of Financial Status (ECF
No. 3), Plaintiff has not shown a financial inability to pay the required filing fee.
Plaintiff is currently employed and claims $1,800.00 in monthly income. Aff. Fin. Stat.
at 2, ECF No. 3-1. He owns four vehicles and owes nothing on them. He has $700.00
cash on hand. Plaintiff claims total monthly expenses of $1,720.00. Id. at 4–5.
Because Plaintiff’s monthly income exceeds his monthly expenses, the Court finds that
Plaintiff has sufficient financial resources to pay the filing fee.
The Tenth Circuit in Lister v. Department of the Treasury, No. 04-5087, 2005
WL 1231928, at *2 (10th Cir. May 25, 2005). has held that magistrate judges have no
authority to enter an order denying a motion to proceed without prepayment of fees
because such ruling is considered dispositive. Under Fed. R. Civ. P. 72(b), a magistrate
judge can only issue a report and recommendation for a decision by the district court.
The undersigned Magistrate Judge therefore submits to the District Judge the following
Recommendation regarding Plaintiff’s motion.
RECOMMENDATION
Based upon the above findings, it is hereby recommended that Plaintiff’s Motion
to Proceed Without Prepayment of Fees (ECF No. 3) be denied. Plaintiff should be
ordered to prepay the full filing fee of $400 within 30 days in order for this action to
proceed and cautioned that failure to pay the filing fee by that time will result in the
dismissal of this action without prejudice.

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IT IS THEREFORE ORDERED that Judge James’s Report and Recommendation is adopted
in full and plaintiff’s Motion for Leave to Proceed Without Prepayment of Fees (Doc. 3) is denied.
IT IS FURTHER ORDERED that plaintiff prepay the full filing fee of $400 within 30 days for
this action to proceed. Failure to pay the filing fee within 30 days, by March 16, will result in dismissal
of this action without prejudice.
Dated February 14, 2018, at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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