Johnson v. United States

Filing 4

REPORT AND RECOMMENDATIONS re 1 and 3 MOTIONS for Leave to Proceed in forma pauperis. It is RECOMMENDED that the motions be denied. Objections to R&R due by 12/2/2016. Signed by Magistrate Judge Kimberly A. Jolson on 11/15/2016. (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
ROGER CARLTON JOHNSON,
Plaintiff,
v.

Civil Action 2:16-cv-1064
Judge Michael H. Watson
Magistrate Judge Jolson

UNITED STATES,
Defendant.
REPORT AND RECOMMENDATION
On November 8, 2016, Plaintiff filed a motion for leave to proceed in forma pauperis
under 28 U.S.C. § 1915(a). (Doc. 1). On the same day, the Court issued an Order noting that
Plaintiff filed short-form application, making it difficult to determine whether paying the onetime filing fee of $400.00 would impose an undue hardship upon him. (Doc. 2). Thus, the Court
ordered Plaintiff to complete the long-form application within ten days. (Id.). On November 15,
2016, Plaintiff filed the long-form application. (Doc. 3).
As this Court explained in its previous Order, the Supreme Court set forth the legal
standard applicable to a motion to proceed in forma pauperis in Adkins v. E.I. DuPont de
Nemours & Co., Inc., 335 U.S. 331 (1948). 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.
Based upon its review of Plaintiff’s long-form application, the Court finds that Plaintiff
appears to have access to sufficient assets such 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. (Docs. 1, 3).
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: November 15, 2016

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