Brown v. BERRYHILL

Filing 7

ORDER Accepting and Adopting 5 Report and Recommendation, Overruling Plaintiff's 6 Objections to Report and Recommendation, Denying Plaintiff's 2 Application to Proceed In Forma Pauperis, and Directing Plaintiff or his Counsel to Pay Filing Fee by 6/22/2017. Signed by District Judge Gershwin A. Drain. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DOUGLAS N. BROWN,
Case No. 17-cv-11577
Plaintiff,
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
NANCY A. BERRYHILL,

UNITED STATES MAGISTRATE JUDGE
ELIZABETH A. STAFFORD

Defendant.
/
ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION [5],
OVERRULING PLAINTIFF’S OBJECTIONS TO REPORT AND RECOMMENDATION [6],
DENYING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS [2], AND
DIRECTING PLAINTIFF OR HIS COUNSEL TO PAY FILING FEE BY JUNE 22, 2017
On May 17, 2017, Douglas N. Brown (“Plaintiff”) initiated this action
pursuant to 42 U.S.C. §§ 405(g), challenging the final decision of Defendant
Commissioner of Social Security (“Commissioner”) denying his application for
Disability Insurance Benefits (“DIB”) under the Social Security Act (the “Act”).
Dkt. No. 1.
The matter was referred to Magistrate Judge Elizabeth A. Stafford on May
17, 2017. Dkt. No. 4. On May 24, 2017, Magistrate Judge Stafford recommended
denying Plaintiff’s application because it stated, in its entirety, “claimant
deceased,” without any supporting allegations of right to execute or administer the

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estate or demonstration of financial need. Dkt. No. 2, p. 1 (Pg. ID 4). Plaintiff
objected on June 7, 2017. Dkt. No. 6.
For the reasons stated herein, Plaintiff’s objections are overruled and the
Magistrate Judge’s recommendation is accepted and adopted.
I. STANDARD OF REVIEW
A. Report and Recommendation
When a party files timely objections to a report and recommendation, the
Court must “make a de novo determination of those portions of the report or
specified findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). “This de novo review requires the court to re-examine all of the
relevant evidence previously reviewed by the magistrate judge in order to
determine whether the recommendation should be accepted, rejected, or modified
in whole or in part.” Cole v. Comm’r of Soc. Sec., 105 F. Supp. 3d 738, 741 (E.D.
Mich. 2015) (citing 28 U.S.C. § 636(b)(1)).
Overly broad objections do not satisfy the objections requirement. Spencer
v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006), abrogated on other grounds by
Jones v. Bock, 549 U.S. 199 (2007). “[W]hile the Magistrate Judge Act, 28 U.S.C.
§ 631 et seq., permits de novo review by the district court if timely objections are
filed, absent compelling reasons, it does not allow parties to raise at the district
court stage new arguments or issues that were not presented to the magistrate.”
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Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000); see United States v.
Waters, 158 F.3d 933, 936 (6th Cir. 1998) (citing Marshall v. Chater, 75 F.3d
1421, 1426–27 (10th Cir. 1996) (“issues raised for the first time in objections to
magistrate judge’s report and recommendation are deemed waived”)).
B. In Forma Pauperis Application
Pursuant to 28 U.S.C. § 1915(a)(1), “any court of the United States may
authorize the commencement, prosecution or defense of any suit, action or
proceeding . . .without prepayment of fees or security therefor, by a person who
submits an affidavit that includes a statement of all assets . . . [and] that the person
is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). If an
application to proceed in forma pauperis is filed along with an affidavit that states
what the plaintiff’s assets are and that the plaintiff is unable to pay the filing fee,
the court should permit the complaint to be filed. See Gibson v. R.G. Smith Co.,
915 F.2d 260, 261 (6th Cir. 1990). Once the complaint has been filed, the Court
examines it to consider whether it is frivolous or fails to state a claim upon which
relief can be granted. See id.
II. DISCUSSION
Magistrate Judge Stafford recommended denying Plaintiff’s application to
proceed in forma pauperis on May 24, 2017, Dkt. No. 5, based on two grounds.
First, Magistrate Judge Stafford found that Donald Brown had not alleged that he
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had the authority to prosecute this case on behalf of Douglas Brown. Id. at 1–2.
Second, she found that the application, which states in its entirety “claimant
deceased,” leaving the rest of the application blank, did not provide adequate
information about the financial resources of the estate to entitle a waiver of filing
fees. Id. at 2.
Plaintiff filed two objections to the Magistrate Judge’s report and
recommendation. Dkt. No. 6. First, he states that Donald Brown is the proper
substitute party for Douglas Brown, who is allegedly deceased. Id. at 2. To this
effect, he attaches a “NOTICE REGARDING SUBSTITUTION OF PARTY
UPON DEATH OF CLAIMANT” that was not presented to the Magistrate Judge.
Dkt. No. 6-1. This form lists Donald Brown as Douglas Brown’s parent, but not
the executor or administrator of his estate. Id. See also Blanton ex rel. Blanton v.
Astrue, No. 1:10-CV-2463, 2011 WL 2637224, at *3 (N.D. Ohio June 20, 2011),
report and recommendation adopted, No. 1:10 CV 2463, 2011 WL 2637248 (N.D.
Ohio July 6, 2011) (finding a parent did not have standing to challenge the denial
of the claimant’s DIB application because she did not show she was highest in
priority to receive possible underpayment).
Second, he states—without providing any evidentiary support or affidavits—
that there are no financial resources in Douglas Brown’s estate, and thus his estate
does not have the resources to pay the filing fee. Dkt. No. 6, p. 2 (Pg. ID 16).
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Inadequate completion of an application to proceed in forma pauperis has been
found to be grounds for denial of that application in the Eastern District of
Michigan. See Sprinkle v. Asadoorian, No. 16-10631, 2016 WL 1090495, at *2
(E.D. Mich. Mar. 21, 2016) (“Plaintiff’s application is completely inadequate. The
only information Plaintiff includes in her application, other than her signature, the
date, and the case caption, is that she is a homemaker. Plaintiff fails to check either
‘yes’ or ‘no’ in response to any of the questions regarding income on the first page,
and also provides no response to any questions on the second page. No other
supporting financial documentation was submitted. Plaintiff’s application is
essentially blank and incomplete. Accordingly, the Court will deny Plaintiff’s
application to proceed in forma pauperis.”). Much like Sprinkle, Plaintiff has
submitted an inadequate application for IFP status and has made no effort to rectify
his application with a signed affidavit, even while introducing other new evidence
in his objection.
Because Plaintiff presents new evidence and argument to the District Court
without a compelling reason for not providing it to the Magistrate Judge, and
because Plaintiff has failed to file a facially sufficient affidavit in support of his
application to proceed in forma pauperis, the Court overrules his objections. Upon
review of the parties’ briefing and the Magistrate Judge’s Report and

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Recommendation, the Court concludes that Magistrate Judge Stafford reached the
correct conclusion.
III. CONCLUSION
Accordingly, the Court hereby ACCEPTS and ADOPTS Magistrate Judge
Stafford’s Report and Recommendation [5].
IT IS FURTHER ORDERED that Plaintiff’s objections [6] are
OVERRULED.
IT IS FURTHER ORDERED that Plaintiff’s Application To Proceed In
Forma Pauperis [2] is DENIED.
IT IS FURTHER ORDERED that Plaintiff or his counsel is directed to pay
the civil case filing fee by June 22, 2017. Failure to pay the filing fee by this
deadline will result in dismissal of the complaint.
IT IS SO ORDERED.
Dated: June 8, 2017

/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
June 8, 2017, by electronic and/or ordinary mail.
/s/ Shawna Burns for Tanya Bankston
Case Manager Generalist 

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