Byington v. Social Security
OPINION and ORDER Rejecting Magistrates Judge's 5 Report and Recommendation, Granting Plaintiff's 2 Application to Proceed in Forma Pauperis, and 3 Directing Service by the U. S. Marshal - Signed by District Judge Judith E. Levy. (FMos)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Deborah Ann Byington,
Case No. 15-cv-10016
Hon. Judith E. Levy
Mag. Judge Michael J. Hluchaniuk
Commissioner of Social Security,
ORDER REJECTING MAGISTRATE JUDGE’S  REPORT AND
RECOMMENDATION, GRANTING PLAINTIFF’S 
APPLICATION TO PROCEED IN FORMA PAUPERIS, AND
DIRECTING SERVICE BY THE U.S. MARSHAL
This matter is before the Court on the Magistrate Judge’s Report
and Recommendation (Dkt. 5), in which the Magistrate Judge
recommends denying plaintiff Deborah Ann Byington’s application to
proceed in forma pauperis (Dkt. 2). Byington timely filed objections to
the report. (Dkt. 6.)
District courts review de novo those portions of a report and
recommendation to which a specific objection has been made. 28 U.S.C.
§ 636(b)(1)(C). “De novo review in these circumstances entails at least a
review of the evidence that faced the magistrate judge; the Court may
not act solely on the basis of a report and recommendation.” Spooner v.
Jackson, 321 F. Supp. 2d 867, 868-69 (E.D. Mich. 2004).
A court may allow a plaintiff to commence a civil action without
prepayment of fees upon submission of an affidavit demonstrating that
the plaintiff “is unable to pay such fees or give security therefor.” 28
U.S.C. § 1915. A plaintiff need not be “absolutely destitute” to qualify.
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948).
“[A]n affidavit is sufficient which states that one cannot because of his
poverty pay or give security for the costs . . . and still be able to provide
himself and dependents with the necessities of life.” Id.
Plaintiff is married and has no dependents.
(Dkt. 2, IFP
Application 2.) She indicates that she is not employed and has no pay
or wages. (Id. at 1.) She received no income from any sources in the 12
months preceding her application. (Id.) She appears to own her home
and has a checking account containing $200.00 and a savings account
containing $5,298.00. (Id. at 2.) Plaintiff has no other items of value.
She has monthly housing expenses of $1272.00 and monthly
medical expenses of $100.00.
Considering this information in light of two cases, the Magistrate
Judge found plaintiff has not demonstrated an inability to pay the filing
fee. (Dkt. 5, Report & Recommendation 2-3.) The Court finds those
cases inapposite. In the first, Powell v. Harris, No. 08-344, 2008 WL
4279494, at *3 (N.D.N.Y. Sept. 15, 2008), the applicant was employed
and earned $350 per week, and had a savings account containing $1500.
Byington, however, is unemployed and has no income. In the second,
Brown v. Dinwiddie, 280 F. App’x 713, 715-16 (10th Cir. 2008), the
applicant was a prisoner and therefore had no living expenses.
Moreover, a state law expressly permitted funds from an inmate’s
savings account to be used for fees or costs in filing a federal action. Id.
Here, Byington has indicated monthly living expenses
equivalent to approximately one quarter of her savings. (See Dkt. 2.)
On that basis, the Court finds Byington has demonstrated an inability
to pay fees for filing a civil action.
Accordingly, the Magistrate Judge’s Report and Recommendation
Plaintiff’s application to proceed in forma pauperis (Dkt. 2) is
The U.S. Marshals Service is directed to attempt service of
plaintiff’s Complaint (Dkt. 1) upon the Commissioner of Social Security,
using the information submitted by plaintiff in the U.S. Marshal Form
285 (Dkt. 3.)
IT IS SO ORDERED.
Dated: February 3, 2015
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on February 3, 2015.
s/Felicia M. Moses
FELICIA M. MOSES
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