Stone v. Ohio Parole Board

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Jamarr R. Stone, Sr.,

Plaintiff,

v. Case No. 2:21-cv-884

Ohio Parole Board, et al.,

Defendants.

ORDER

Plaintiff Jamarr R. Stone, Sr., a state inmate proceeding pro

se, has filed a motion for leave to proceed in this case in forma

pauperis under 28 U.S.C. §1915(a). On March 4, 2021, the magistrate

judge issued a report and recommendation noting that over the past

six months, plaintiff has recently received $1,937.35 from his

family for legal fees and commissary, and that the average monthly

deposits into plaintiff’s prison trust fund account were $280.00.

The magistrate judge found that plaintiff has sufficient assets such

that paying the one-time filing fee of $402.00 would not impose an

undue hardship upon him or deprive plaintiff of the necessities of

life. The magistrate judge recommended that plaintiff’s motion be

denied. On March 18, 2021, plaintiff filed an objection to the

report and recommendation.

If a party objects within the allotted time to a report and

recommendation, the court “shall make a de novo determination of

those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C. §636(b)(1);

see also Fed. R. Civ. P. 72(b). Upon review, the Court “may accept,

reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C.

§636(b)(1).

The magistrate judge correctly noted that 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

of the necessities of life. Adkins v. E.I. DuPont de Nemours & Co.,

Inc., 335 U.S. 331, 339 (1984). Paying the filing fee must be more

than a mere hardship. Foster v. Cuyahoga Dep’t of Health & Human

Servs., 21 F. App’x 239, 240 (6th Cir. 2001). Funds received from

sources other than prison income may be considered in determining

whether an inmate is financially able to pay a filing fee. See

Wilson v. Sargent, 313 F.3d 1315, 1319-20 (11th Cir. 2002)(district

court could assess an initial partial filing fee based on the $50

per month sent by family members). The magistrate judge concluded

that plaintiff failed to establish that paying the filing fee would

cause plaintiff to deprive himself of the necessities of life.

In his objection, plaintiff claims that he withdrew $874.15

from his trust fund for the purpose of paying postage and copy fees

in this case, almost half of the $1,937.35 deposited into his

account. However, by those calculations, plaintiff still has

$1,063.20 of those funds remaining, not counting the other regular

deposits to his account. Nothing in plaintiff’s objections

establishes that payment of the one-time filing fee of $402.00 would

cause plaintiff to deprive himself of the necessities of life. The

court agrees with the conclusion of the magistrate judge that

plaintiff has sufficient funds in his inmate trust account to pay

the one-time filing fee of $402.00.

The court adopts the report and recommendation (Doc. 3).

Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 1)

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is denied. Plaintiff is directed to pay the filing fee of $402.00

within twenty-one days of the date of this order. Plaintiff is

advised that the failure to pay the full fee within twenty-one days

will result in the dismissal of this action.

Date: March 22, 2021 s/James L. Graham

James L. Graham

United States District Judge

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