Hecht v. Internal Revenue Service

Filing 5

MEMORANDUM AND ORDER adopting 4 Report and Recommendations and denying 3 Motion for Leave to Proceed in forma pauperis. Plaintiff must prepay the full filing fee of $400 within 30 days of this order for this action to proceed. If plaintiff fails to pay the filing fee by that time, the court will dismiss this action without prejudice. Signed by District Judge Daniel D. Crabtree on 1/29/18. Mailed to pro se party Aaron J. Hecht by regular mail (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

AARON J. HECHT,
Plaintiff,
v.

Case No. 17-4118-DDC-TJJ

INTERNAL REVENUE SERVICE,
Defendant.

MEMORANDUM AND ORDER
On December 21, 2017, plaintiff Aaron J. Hecht filed his Complaint in this action against
the Internal Revenue Service (Doc. 1). That same day, plaintiff filed a Motion for Leave to
Proceed in forma pauperis (Doc. 3). On January 5, 2018, Magistrate Judge Teresa J. James
issued a Report and Recommendation (Doc. 4), recommending denial of plaintiff’s Motion for
Leave to Proceed in forma pauperis. Judge James concluded that plaintiff failed to show a
financial inability to pay the required filing fee. For that reason, she recommended that the
court: (1) require plaintiff to “prepay the full filing fee of $400 within 30 days in order for this
action to proceed” and (2) caution plaintiff, “failure to pay the filing fee by that time will result
in the dismissal of this action without prejudice.” Doc. 4 at 2.
As Judge James explained in her Report and Recommendation, plaintiff had the right to
file objections to the Report and Recommendation under 28 U.S.C. § 636(b)(1) and Federal Rule
of Civil Procedure 72(b)(2) within 14 days after service. Doc. 4 at 1. She also advised plaintiff
that failing to make a timely objection to the Report and Recommendation would waive any right
to appellate review. Id. On January 5, 2018, the Clerk sent a copy of the Report and
Recommendation to plaintiff by regular mail (Docket Entry for Doc. 4), thus completing service

of the Report and Recommendation. See Fed. R. Civ. P. 5(b)(2)(C) (providing that the court may
accomplish service by mailing the Report and Recommendation “to [plaintiff’s] last known
address—in which event service [was] complete upon mailing”); accord ReVoal v. Brownback,
No. 14-4076, 2014 WL 5321093, at *1 (D. Kan. Oct. 16, 2014). Plaintiff’s written objections to
the Report and Recommendation were due by January 19, 2018. That deadline has passed and
yet, plaintiff has not filed an objection.
If an aggrieved party objects to the magistrate judge’s report and recommendation, the
district judge assigned to the case “must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. §
636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.”). But
when a plaintiff has not objected to a Report and Recommendation properly, the court has
“considerable discretion” to review the recommendation under “any standard it deems
appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991). After reviewing
plaintiff’s Affidavit of Financial Status and Judge James’s Report and Recommendation, the
court agrees with Judge James’s recommendation in its entirety. Plaintiff’s combined monthly
income is $8,813.33 and his monthly expenses are $4,450.00. His monthly income nearly
doubles his monthly expenses, providing sufficient financial resources to pay the filing fee. The
court thus accepts, affirms, and adopts Judge James’s Report and Recommendation in its
entirety.
IT IS THEREFORE ORDERED BY THE COURT THAT the court accepts, adopts,
and affirms Judge James’s Report and Recommendation (Doc. 4) in its entirety. Plaintiff must
prepay the full filing fee of $400 within 30 days of this order for this action to proceed. If

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plaintiff fails to pay the filing fee by that time, the court will dismiss this action without
prejudice.
IT IS SO ORDERED.
Dated this 29th day of January, 2018, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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