Johnson v. Secretary of Veterans Affairs

Filing 2

REPORT AND RECOMMENDATION re 1 MOTION for Leave to Proceed in forma pauperis in that it is RECOMMENDED that Plaintiff's Application to Proceed in forma pauperis be DENIED. Objections to R&R due by 11/7/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on 10/24/17. (sem)(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

JANET K. JOHNSON,
Plaintiff,
Civil Action 2:17-cv-915
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers

v.

SECRETARY OF VETERANS
AFFAIRS,
Defendant.

REPORT AND RECOMMENDATION
This matter is before the Court for consideration of Plaintiff Janet K. Johnson’s
Application to Proceed In Forma Pauperis. (ECF No. 1.) For the reasons that follow, it is
RECOMMENDED that Plaintiff’s Application be DENIED.
To ensure access to courts, 28 U.S.C. § 1915(a) permits an indigent plaintiff to avoid
payment of filing fees if the applicant demonstrates by affidavit the inability to pay such fees.
The United States Supreme Court, in Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331,
(1948), set forth the legal standards governing applications to proceed in forma pauperis. The
Adkins Court advised that “one must not be absolutely destitute to enjoy the benefit of the
statute” and that the statute does not require an individual to “contribute . . . the last dollar they
have or can get.” Id. at 339. The Court explained that “[t]he public would not be profited if
relieved of paying costs of a particular litigation only to have imposed on it the expense of
supporting the person thereby made an object of public support.” Id. Rather, what is required is
a demonstration via affidavit that “because of his [or her] poverty,” the applicant cannot pay the

fee and continue to provide for the necessities of life. Id. Courts evaluating applications to
proceed in forma pauperis, generally consider an applicant’s employment, annual income and
expenses, and any other property or assets the individual possesses. Giles v. Comm’r of Soc.
Sec., No. 14-CV-11553, 2014 WL 2217136, at *1 (E.D. Mich. May 29, 2014).
Here, the information set forth in Plaintiff’s in forma pauperis application does not
demonstrate her inability to pay. Although Plaintiff indicates in her affidavit that she has no
monthly income, federal courts have consistently considered “other financial resources” in
determining a litigant’s ability to pay. Ciavarella v. Comm’r of Soc. Sec., No. 5:13-CV-2031,
2013 WL 5354091 at *1 (N.D. Ohio Sept. 24, 2013). Plaintiff’s application reflects that she is
single, has no dependents, and holds a significant amount in savings or other accounts. (ECF
No. 1 at 2-3.) It does not appear, therefore, that the cost of filing the instant matter is beyond
Plaintiff’s means. See Ciavarella, 2013 WL 5354091 at * 2 (holding that a plaintiff who has
monthly liabilities of $4,337.38 and no monthly income is ineligible to proceed in forma
pauperis based on approximately $10,000 in bank accounts, $25,000 in a 401K account, and
property worth $166,000.)
In sum, in view of Plaintiff’s income, the Undersigned finds that Plaintiff has not
demonstrated that, because of her poverty, she is unable to pay for the costs of this litigation and
still provide for herself. It is, therefore, RECOMMENDED that Plaintiff’s Application to
Proceed In Forma Pauperis be DENIED and that she be ordered to pay the required $400 filing
fee within FOURTEEN (14) DAYS if she intends to proceed.

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PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review of by the District Judge
and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l
Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the
magistrate judge’s recommendations constituted a waiver of [th defendant’s] ability to appeal the
district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .” (citation
omitted)).
IT IS SO ORDERED.
Date: October 24, 2017

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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