Hauck v. Commissioner of Social Security

Filing 2

REPORT AND RECOMMENDATIONS re 1 MOTION for Leave to Proceed in forma pauperis filed by Albert J. Hauck, Jr. It is RECOMMENDED that Plaintiff's motion be denied. Objections to R&R due by 10/28/2016. Signed by Magistrate Judge Kimberly A. Jolson on 10/11/2016. (pes)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

ALBERT J. HAUCK, JR.,
Plaintiff,
v.

Civil Action 2:16-cv-970
Judge Michael H. Watson
Magistrate Judge Jolson

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
REPORT AND RECOMMENDATION
On October 7, 2016, Plaintiff filed a motion for leave to proceed in forma pauperis under
28 U.S.C. § 1915(a). (Doc. 1). In Adkins v. E.I. DuPont de Nemours & Co., Inc., 335 U.S. 331
(1948), the Supreme Court set forth the legal standard applicable to a motion to proceed in forma
pauperis. An affidavit of poverty is sufficient if it reflects that the plaintiff cannot pay the
Court’s filing fee without depriving himself and his dependents the “necessities of life.” Id. at
339 (internal quotation marks omitted). Although the plaintiff need not be totally destitute in
order to proceed in forma pauperis, paying the filing fee must be more than a mere hardship. See
Foster v. Cuyahoga Dep’t of Health & Human Servs., 21 F. App’x. 239, 240 (6th Cir. 2001)
(noting that “the question is whether the court costs can be paid without undue hardship”).
Consequently, unless it is clear that the one-time payment of the Court’s filing fee will render the
plaintiff unable to provide for himself and his dependents, the Court cannot grant him in forma
pauperis status. See Adkins, 335 U.S. at 339.

In this case, it appears that Plaintiff’s assets exceed his liabilities to such an extent that
paying the one-time filing fee of $400.00 would not impose an undue hardship upon him. That
is, paying the filing fee would not cause Plaintiff to deprive himself the necessities of life.
Accordingly, it is RECOMMENDED that Plaintiff’s motion for leave to proceed in forma
pauperis be denied. (Doc. 1).
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s).

A Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.
§ 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.

Date: October 11, 2016

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE