Kister v. Southeast Ohio Regional Jail et al
REPORT AND RECOMMENDATIONS that Plaintiff's 1 MOTION for Leave to Proceed in forma pauperis be DENIED and that he be required to pay the filing fee w/in seven (7) days of adoption. Objections to R&R due by 6/18/2021. Signed by Magistrate Judge Kimberly A. Jolson on 6/4/2021. (kk2)(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
Case No. 2:21-cv-2278
Judge Edmund A. Sargus
Magistrate Judge Kimberly A. Jolson
SOUTHEAST OHIO REGIONAL
JAIL, et al.,
REPORT AND RECOMMENDATION
On May 5, 2021, Plaintiff filed a motion for leave to proceed in forma pauperis under
28 U.S.C. § 1915(a). (Doc. 1). Upon review, the Court found Plaintiff’s Motion deficient and
ordered him to file a properly completed motion for leave to proceed in forma pauperis on or
before June 4, 2021. (Doc. 2). On May 25, 2021, Plaintiff attached a properly completed motion
for leave to proceed in forma pauperis to his Motion to Arrest Jail Warden (see Doc. 3-1).
The Supreme Court, in Adkins v. E.I. DuPont de Nemours & Co., Inc., set forth the legal
standard applicable to a motion to proceed in forma pauperis. 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 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, the court cannot grant her
in forma pauperis status. See Adkins, 335 U.S. at 339.
In his affidavit, Plaintiff attests that he is currently self-employed but earns no income.
(Doc. 3-1 at 1). However, he represents that he has almost $2,000 “in cash or in a checking or
savings account[,]” as well as owning property valued at $30,000. (Id. at 2). While Plaintiff does
have a few debt obligations (see id. at 3 (detailing two credit card payments)), none of these are
overly onerous given his savings and property assets. (Id.).
Based on these representations, it does not appear that paying the one-time filing fee would
cause Plaintiff to be deprived the necessities of life. See Adkins, 335 U.S. at 339; see also Bush v.
Ohio Dep’t of Rehab. & Corr., No. 2:05-CV-0667, 2007 WL 4365381, at *1 (S.D. Ohio Dec. 10,
2007) (noting that “[i]n forma pauperis status is usually reserved either for indigent prisoners or
for persons who subsist on small fixed-income payments such as social security, unemployment
compensation, or public assistance and who would truly be required to forego food, shelter,
clothing, or some other necessity were they to devote any of their scant resources to paying a
judicial filing fee”). Accordingly, it is RECOMMENDED that Plaintiff’s Motion for Leave to
Proceed in forma pauperis (Doc. 1) be DENIED. If this recommendation is adopted, it is further
RECOMMENDED that Plaintiff be required to pay the filing fee within seven (7) days of
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: June 4, 2021
/s/Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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