Gater v. BERRYHILL

Filing 11

ORDER REJECTING REPORT AND RECOMMENDATION 5 AS MOOT. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CIARA GATER OBO J.G.,
Case No. 17-cv-12375
Plaintiff,
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
NANCY A. BERRYHILL,

UNITED STATES MAGISTRATE JUDGE
ELIZABETH A. STAFFORD

Defendant.
/
ORDER REJECTING REPORT AND RECOMMENDATION [5] AS MOOT
On July 24, 2017, Ciara Gater (“Plaintiff”), proceeding on behalf of J.G.,
initiated this action pursuant to 42 U.S.C. §§ 1381(a) and 1382(a). Dkt. No. 1.
Plaintiff challenges the final decision of Defendant Commissioner of Social
Security (“Commissioner”) denying J.G.’s application for Supplemental Security
Income (“SSI”) under the Social Security Act (the “Act”). Dkt. No. 1.
The matter was referred to Magistrate Judge Elizabeth A. Stafford on July
24, 2017. Dkt. No. 4. On July 26, 2017, Magistrate Judge Stafford recommended
denying Plaintiff’s application to proceed in forma pauperis because Plaintiff
wrote “n/a” in some of the required fields and left others completely blank. See
Dkt. No. 2. Plaintiff did not attach any documents demonstrating financial need.
Plaintiff objected on August 9, 2017. Dkt. No. 6. That same day, Plaintiff refiled a
completed application for fee waiver, Dkt. No. 7, which Magistrate Judge Stafford
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granted, Dkt. No. 8. However, the July 26th Report and Recommendation has been
left pending, requiring the Court to render a decision upon it.
For the reasons stated herein, the Magistrate Judge’s recommendation is
rejected as moot.
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 July 26, 2017. Dkt. No. 5. Magistrate Judge Stafford
found that Ciara Gater’s application for in forma pauperis status did not provide
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adequate information about the party’s financial resources to entitle a waiver of
filing fees. Id. at 2–3. Upon the resubmission of an application with information
sufficient to answer the required questions, Magistrate Judge Stafford granted
Plaintiff’s new application and rendered her Report and Recommendation moot.
See Dkt. Nos. 5–8. The Court will accordingly reject it.
Although the Court need no longer weigh the issues addressed in the Report
and Recommendation, the Court does find it necessary to address an ongoing
problem. Since January 2016, Plaintiff’s counsel, Wesley Lamey, has filed
numerous facially deficient applications to proceed in forma pauperis before the
Court. See, e.g., Taylor v. Colvin, No. 16-cv-10239 (E.D. Mich. Jan. 26, 2016)
(Steeh, J.) (requiring Plaintiff supplement an incomplete IFP application); Harrier
v. Colvin, No. 16-cv-11456 (E.D. Mich. April 22, 2016) (Murphy, J.) (requiring
Plaintiff supplement an incomplete IFP application); Pettit v Colvin, No. 16-cv12811 (E.D. Mich. Aug. 3, 2016) (Lawson, J.) (requiring Plaintiff supplement an
incomplete IFP application); Cheney v. Colvin, No. 16-cv-12950 (E.D. Mich. Aug.
16, 2016) (Murphy, J.) (ordering Plaintiff to show cause after leaving all questions
regarding property, monthly expenses, debts, and dependents unanswered);
McDonald v. Colvin, No. 16-cv-14015 (E.D. Mich. Nov. 14, 2016) (Hood, J.)
(ordering Plaintiff to show cause after leaving all questions regarding property,
monthly expenses, debts, and dependents unanswered); Fletson v. Colvin, No. 16-4-

cv-14034 (E.D. Mich. Nov. 16, 2016) (Michelson, J.) (ordering Plaintiff to show
cause after leaving all questions regarding property, monthly expenses, debts, and
dependents unanswered); Brown v. Berryhill, No. 17-cv-11577 (E.D. Mich. May
24, 2017) (Drain, J.) (recommending an IFP application be denied where it stated
in its entirety, “claimant deceased”); Gater v. Berryhill, No. 17-cv-12375 (E.D.
Mich. July 26, 2017) (Drain, J.) (present case). Judging from these applications, it
is unclear if Lamey even views the applications before filing them on the docket.
Lamey corrects these errors only when ordered by the Court, wasting valuable
judicial resources in the process. See id. Moreover, other pleadings filed by Lamey
demonstrate a lackadaisical attempt to comply with Local Rules. See Dkt. No. 1
(failing to comply with E.D. Mich. LR 5.1(a)(2)–(3)).
Sanctions under Rule 11 of the Federal Rules of Civil Procedure may be
imposed for “objectively unreasonable” conduct in litigation or where an
individual makes a claim without a reasonable basis. Montell v. Diversified
Clinical Servs., Inc., 757 F.3d 497, 510 (6th Cir. 2014). “Under 28 U.S.C. § 1927,
sanctions may be imposed against an attorney who ‘multiplies the proceedings in
any case unreasonably and vexatiously.’ ” Id. Should Lamey continue to file
papers without making a reasonable inquiry into whether such papers omit material
facts or comply with Local Rules, he may be subject to sanctions. See id.; E.D.
Mich. LR 11.1
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III. CONCLUSION
Accordingly, the Court hereby REJECTS Magistrate Judge Stafford’s
Report and Recommendation [5] as moot.
IT IS SO ORDERED.
Dated:

August 10, 2017
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

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