BERNARD M. JONES, Magistrate Judge.
Before the Court is Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs [Doc. No. 2]. This matter has been assigned pursuant to In re: Social Security Cases, GO 16-4 (W.D. Okla.) (eff. Jan. 1, 2017).
Plaintiff is required to pay a fee of $400.00 to commence his civil action.
Proceeding in forma pauperis "in a civil case is a privilege, not a right — fundamental or otherwise." White v. State of Colo., 157 F.3d 1226, 1233 (10th Cir. 1998). To succeed on a motion to proceed in forma pauperis, the movant must show a financial inability to pay the required filing fees. Lister, 408 F.3d at 1312. 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) (citations omitted). But, "a person should not be denied the opportunity to proceed under 28 U.S.C. § 1915(a) simply because he or she is not `absolutely destitute.'" Id. (citation omitted).
A review of Plaintiff's Application demonstrates that he has the ability to pay the $400.00 filing fee. The Court has taken into consideration the income of Plaintiff's spouse in making this determination. See generally Zhu v. Countrywide Realty Co., 148 F.Supp.2d 1154, 1155 (D. Kan. 2001) (recognizing that "[i]n a number of cases, 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") (collecting cases); see also Jackson v. United States Dep't of Army, No. 14-4034, 2014 WL 2761142 at *1 (D. Kan. June 18, 2014) (denying application to proceed in forma pauperis based, in part, on spouse's current employment and "substantial annual salary").
Plaintiff lists monthly expenses of $1,062.81. Appl. 2. Over the past twelve months, Plaintiff's spouse received an average of $1,600.00 of income per month. Id. at 1. Considering the expenses listed by Plaintiff, his spouse's current monthly income exceed their monthly expenses in an amount sufficient to allow payment of the filing fee. Compare Brewer, 24 F. App'x at 979 (denying request to proceed in forma pauperis where the plaintiff's "monthly income exceed[ed] his monthly expenses by a few hundred dollars"); see also Westgate v. Astrue, No. 08-4136-JAR, 2008 WL 5110906 at *1 (D. Kan. Dec. 2, 2008) (unpublished op.) (denying in forma pauperis motion where total monthly income from all sources exceed[ed] [the plaintiff's] monthly expenses by $364.00" and therefore, the plaintiff "would be able to pay the filing fee in th[e] case by using his discretionary income from one month").
Other factors further weigh against Plaintiff demonstrating an inability to pay the filing fee. Plaintiff owns a home and twelve lots, for which he paid $10,000.
For all the reasons set forth, Plaintiff's Application demonstrates an ability to pay the filing fee. Therefore, upon careful consideration of the relevant factors and Plaintiff's financial condition as set forth in his application, Plaintiff does not qualify to proceed in forma pauperis.
It is recommended that Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs [Doc. No. 2] be denied. It is further recommended that if Plaintiff does not pay the $400.00 filing fee in full to the Clerk of the Court within twenty-one days of any order adopting this Report and Recommendation, that this action be dismissed without prejudice to refiling, pursuant to LCvR 3.3(e).
Plaintiff is advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636 and Fed. R. Civ. P. 72. Any such objection must be filed with the Clerk of the Court on or before January 2, 2019. Plaintiff is further advised that failure to make timely objection to this Report and Recommendation waives his right to appellate review of the factual and legal issues addressed herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).