Hays v. Social Security Administration

Filing 4

ORDER by Magistrate Judge William P. Lynch granting in part and denying in part 3 Motion. Filing fee cannot be waived. Judgment of dismissal without prejudice will be entered by the Court upon receipt of the filing fee. (mej)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JOHNNA HAYS,
Plaintiff,
v.

CV 17-700 WPL

NANCY A. BERRYHILL,
Acting Commissioner of Social Security Administration,
Defendant.

ORDER
Plaintiff Johnna Hays filed a motion to dismiss without prejudice and to waive the filing
fee (Doc. 3) upon discovery that she did not exhaust her administrative remedies. The fee for
instituting any civil action, suit or proceeding in this District is $400.00, which is comprised of
the $350.00 filing fee, see 28 U.S.C. § 1914(a), and a $50.00 administrative fee. A plain reading
of the relevant statutes, however, establishes that the filing fee is not waivable. 28 U.S.C. § 1914
(the “clerk of each district court shall require the parties instituting any civil action, suit or
proceeding . . . to pay a filing fee . . .”); 28 U.S.C. § 1915(a) (the Court “may authorize the
commencement . . . of any suit, action or proceeding, civil or criminal . . . without prepayment of
fees”). Section 1915(a) does not permit litigants to avoid payment of fees, but rather the
prepayment of fees. See Brown v. Eppler, 725 F.3d 1221, 1231 (10th Cir. 2013). Hays is
therefore obligated to pay the $400.00 filing fee for instituting this case.

A true copy of this order was served
on the date of entry--via mail or electronic
means--to counsel of record and any pro se
party as they are shown on the Court’s docket.

The motion is denied to the extent that Hays seeks waiver of the filing fee. Pending
collection of the filing fee, the motion to dismiss without prejudice is granted. Judgment of
dismissal without prejudice will enter as soon as the filing fee has been paid.
IT IS SO ORDERED.

____________________________________
William P. Lynch
United States Magistrate Judge

A true copy of this order was served
on the date of entry--via mail or electronic
means--to counsel of record and any pro se
party as they are shown on the Court’s docket.