Lowery v. Social Security Administration

Filing 7

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Laura Fashing. Objections to PF&RD due by 9/12/2024. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (lj)

IN THE UNTIED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ROBERT GENE L., 1
Plaintiff,
v.

1:24-cv-00817-LF

MARTIN J. O’MALLEY, 2
Commissioner of Social Security Administration,
Defendant.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
DENYING MOTION TO PROCEED
IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915
THIS MATTER comes before the Court on plaintiff Robert Gene L.’s motion to proceed
in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915, requesting that the Court authorize the
commencement of his lawsuit against the Commissioner of the Social Security Administration
without the prepayment of fees. Doc. 2. District Judge William P. Johnson referred this case to
me “to conduct hearings, if warranted, including evidentiary hearings, and to perform any legal
analysis required to recommend to the Court an ultimate disposition of the case.” Doc. 6.
The Court may authorize the commencement of any suit without prepayment of fees by a
person if he or she (1) submits an affidavit that includes a statement of all assets he or she
possesses and (2) is unable to pay such fees. 28 U.S.C. § 1915(a). In determining whether a
movant is unable to pay within the meaning of § 1915, the Tenth Circuit has indicated that “[o]ne

In the interest of privacy, this opinion uses only the first name and the initial of the last name of
the non-governmental party in this case.
1

Martin O’Malley became the Commissioner of the Social Security Administration on
December 20, 2023, and is automatically substituted as the defendant in this action. FED. R. CIV.
P. 25(d).
2

need not be absolutely destitute to proceed IFP.” Lewis v. Ctr. Mkt., 378 F. App’x 780, 785
(10th Cir. 2010) (unpublished). Nevertheless, a motion to proceed IFP may properly be denied if
the movant can pay the required fees and still support and provide necessities for himself or
herself and any dependents. Id.
In his affidavit, Plaintiff states that his monthly income is $1886. Doc. 2 at 2. His
monthly payments, including rent, utilities, credit card debt, and groceries, total $1,443. Id. at 3.
Plaintiff, therefore, has a positive balance of $443 per month. Thus, it appears that plaintiff is
able to pay the $400.00 filing fee for instituting a new case because his monthly income exceeds
his monthly expenses by several hundred dollars. See Brewer v. City of Overland Park Police
Dep’t, 24 F. App’x 977, 979 (10th Cir. 2002) (litigant whose monthly income exceeded his
monthly expenses by a few hundred dollars appeared to have sufficient income to pay filing fees
and thus was not entitled to IFP status) (unpublished).
Because I find that plaintiff Robert Gene L.’s affidavit fails to demonstrate that he meets
the indigency requirement for proceeding IFP, I recommend that the Court DENY his motion to
proceed IFP.

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of
a copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). Written
objections must be both timely and specific. United States v. One Parcel of Real Prop., With
Buildings, Appurtenances, Improvements, & Contents, Known as: 2121 E. 30th St., Tulsa,
Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). A party must file any objections with the
Clerk of the District Court within the fourteen-day period if that party wants to have
appellate review of the proposed findings and recommended disposition. Failure to file
timely and specific objections will result in waiver of de novo review by a district or
appellate court. In other words, if no objections are filed, no appellate review will be
allowed.

___________________________
Laura Fashing
United States Magistrate Judge