noting that “the question is whether the court costs can be paid without undue hardship”
How later courts described this case
- noting that “the question is whether the court costs can be paid without undue hardship”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMARR R. STONE, SR.,
Plaintiff,
v. Civil Action 2:21-cv-884
Judge James L. Graham
Magistrate Judge Kimberly A. Jolson
OHIO PAROLE BOARD, et. al.,
Defendants.
REPORT AND RECOMMENDATION
On March 2, 2021, Plaintiff filed a motion for leave to proceed in forma pauperis under
28 U.S.C. § 1915(a). (Doc. 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 HHS, 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 Plaintiff’s affidavit, he represents that although he is currently incarcerated, he has
recently received $1,937.35 from his family for “legal fees and commissary.” (Doc. 1 at 2).
Furthermore, the average monthly deposits into Plaintiff’s prison trust fund account were $280.00.
(Id. at 5). Based on the foregoing, it does not appear that paying the $402.00 filing fee in this case
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.
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: March 4, 2021 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE