Collins v. Commissioner of Social Security

Filing 44

REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiffs motion for leave to proceed in forma pauperis on appeal (Doc. 43 ) be DENIED. 2. Plaintiff be advised of the following: Pursuant to Fed. R. App. P. 24(a)(4), a plaintiff may file, within thirty (30) days after service of any Order adopting the Report and Recommendation, a motion with the Sixth Circuit Court of Appeals for leave to proceed as a pauper on appeal. The plaintiff is notified that if the plaintiff does n ot file a motion within thirty (30) days of receiving notice of the District Courts decision as required by Fed. R. App. P. 24(a)(5), or fails to pay the required filing fee of $505.00 within this same time period, the appeal will be dismissed f or want of prosecution. Objections to R&R due by 1/24/2023. Signed by Magistrate Judge Karen L. Litkovitz on 01/10/2023. (bjc)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:18-cv-00268-TSB-KLL Doc #: 44 Filed: 01/10/23 Page: 1 of 3 PAGEID #: 192

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MACHELLE COLLINS,
Plaintiff,

Case No. 1:18-cv-268
Black, J.
Litkovitz, M.J.

vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
TO DENY MOTION TO PROCEED
ON APPEAL IN FORMA PAUPERIS

This matter is before the Court on plaintiff’s motion for leave to proceed in forma
pauperis on appeal pursuant to 28 U.S.C. § 1915. (Doc. 43).
Pursuant to 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma pauperis if
the trial court certifies in writing that it is not taken in good faith.” See also Fed. R. App. P.
24(a). Good faith in this context is demonstrated when the party seeks appellate review of an
issue that is not frivolous. See Coppedge v. United States, 369 U.S. 438, 445 (1962). An
appeal is frivolous where the appeal lacks an arguable basis either in law or fact. Neitzke v.
Williams, 490 U.S. 319, 325 (1989).
On December 27, 2022, the undersigned issued a Report recommending that plaintiff’s
motion “for my SSDI case to move forward” be denied for the reasons stated therein, and that the
Court certify that any in forma pauperis appeal would not be taken in good faith within the
meaning of 28 U.S.C. § 1915(a)(3). (Doc. 38). On January 5, 2023, the Court overruled
plaintiff’s objections and adopted the Report and Recommendation of the Magistrate Judge.
(Doc. 40). In that same Order, the Court certified that any in forma pauperis appeal from the
Order would not be taken in good faith within the meaning of 28 U.S.C. § 1915(a)(3). (Id.).

Case: 1:18-cv-00268-TSB-KLL Doc #: 44 Filed: 01/10/23 Page: 2 of 3 PAGEID #: 193

Accordingly, plaintiff’s motion for leave to proceed in forma pauperis on appeal (Doc. 43)
should be DENIED.
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff’s motion for leave to proceed in forma pauperis on appeal (Doc. 43) be DENIED.
2. Plaintiff be advised of the following:
Pursuant to Fed. R. App. P. 24(a)(4), a plaintiff may file, within thirty (30) days after
service of any Order adopting the Report and Recommendation, a motion with the Sixth Circuit
Court of Appeals for leave to proceed as a pauper on appeal. Callihan v. Schneider, 178 F.3d
800, 803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Service, 105 F.3d 274
(6th Cir. 1997). The plaintiff’s motion must include a copy of the affidavit filed in the District
Court and the District Court’s statement of the reasons for denying pauper status on appeal. Id.;
see Fed. R. App. P. 24(a)(5).
The plaintiff is notified that if the plaintiff does not file a motion within thirty (30) days
of receiving notice of the District Court’s decision as required by Fed. R. App. P. 24(a)(5), or
fails to pay the required filing fee of $505.00 within this same time period, the appeal will be
dismissed for want of prosecution. Callihan, 178 F.3d at 804. Once dismissed for want of
prosecution, the appeal will not be reinstated, even if the filing fee or motion for pauper status is
subsequently tendered, unless the plaintiff can demonstrate that the plaintiff did not receive
notice of the District Court’s decision within the time period prescribed for by Fed. R. App. P.
24(a)(5). Id.
Date: 1/10/2023

Karen L. Litkovitz, Magistrate Judge
United States District Court
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Case: 1:18-cv-00268-TSB-KLL Doc #: 44 Filed: 01/10/23 Page: 3 of 3 PAGEID #: 194

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MACHELLE COLLINS,

Case No. 1:18-cv-268
Black, J.
Litkovitz, M.J.

Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations.

This period may be extended further by the Court on

timely motion for an extension. Such objections shall specify the portions of the Report
objected to and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendation is based in whole or in part upon matters occurring on the
record at an oral hearing, the objecting party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to another
party=s objections WITHIN 14 DAYS after being served with a copy thereof. Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn,
474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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