Castell v. Commissioner of Social Security

Filing 3

REPORT AND RECOMMENDATION: It is RECOMMENDED 1 MOTION for Leave to Proceed in forma pauperis filed by Julie Castell be DENIED. objections to R&R due by 1/22/2021. Signed by Magistrate Judge Elizabeth Preston Deavers on January 8, 2021. (jlk)

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Case: 2:21-cv-00042-SDM-EPD Doc #: 3 Filed: 01/08/21 Page: 1 of 4 PAGEID #: 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION JULIE CASTELL, Plaintiff, Civil Action 2:21-cv-42 Judge Sarah D. Morrison Magistrate Judge Elizabeth P. Deavers v. COMMISSIONER OF SOCIAL SECURITY, Defendant. REPORT AND RECOMMENDATION This matter is before the Court for consideration of Plaintiff Julie Castell’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 Case: 2:21-cv-00042-SDM-EPD Doc #: 3 Filed: 01/08/21 Page: 2 of 4 PAGEID #: 10 2 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). Courts also “consistently consider[] his or her other financial resources, including resources that could be made available from the applicant’s spouse, or other family members, as well as equity in real estate and automobiles.” Levet v. Comm’r of Soc. Sec., No. 1:14-cv-1379, 2014 WL 3508893, at *2 (S.D. Ohio July 14, 2014) (internal quotation marks and citations omitted); see also Reynolds v. Crawford, No. 1:01–cv–877, 2009 WL 3908911, at *1 (S.D. Ohio Nov. 17, 2009) (collecting cases reflecting that “[t]he case law also directs the courts to consider the income and assets of the applicant’s spouse in assessing an application to proceed in forma pauperis.”) Here, the information set forth in Plaintiff’s in forma pauperis application does not demonstrate her inability to pay. Plaintiff states on her application that she has cash on hand or in a checking, savings, or other account in the amount of $48,887.72, comprised of an annuity in the amount of $41,863.96 and an IRA in the amount of $7,023.76. The application further reflects that Plaintiff has $456.34 in a checking account and $232.01 in a savings account. It also reflects monthly expenses totaling approximately $1,614.00 and additional debt totaling $4,074.27. (Pl.’s Application, ECF No. 1, at pp. 2, 4.) At a balance of $48,887.72, Plaintiff's cash on hand or in an account is more than enough to pay the filing fee. In short, this is not a case where the filing fee poses an undue hardship. Rather, this is a case in which Plaintiff must “’weigh the financial constraints posed by pursuing [her] complaint against the merits of [her] claims.’” Hines v. Comm'r of Soc. Sec. Admin., No. 5:17CV2332, 2017 WL 6047651, at *2 (N.D. Ohio Dec. 7, 2017) (quoting Levet, 2014 WL 3508893, at * 2) Case: 2:21-cv-00042-SDM-EPD Doc #: 3 Filed: 01/08/21 Page: 3 of 4 PAGEID #: 11 3 (quoting Behmlander, 2012 WL 5457466, at *2); see also Brown v. Dinwiddie, 280 Fed.Appx. 713, 715-16 (10th Cir. 2008) (denying IFP application where plaintiff had $850 in savings account and could thus afford the $455 filing fee for his appeal). In view of Plaintiff’s available funds, 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. Accordingly, it is RECOMMENDED that Plaintiff’s Application be DENIED. The Undersigned further notes that should Plaintiff succeed in this action, she may be entitled to reimbursement for the monies paid toward the $402 filing and administrative fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. 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 Case: 2:21-cv-00042-SDM-EPD Doc #: 3 Filed: 01/08/21 Page: 4 of 4 PAGEID #: 12 4 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)). Date: January 8, 2021 /s/ Elizabeth A. Preston Deavers _ _ ELIZABETH A. PRESTON DEAVERS UNITED STATES MAGISTRATE JUDGE

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