Boykins v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MATTHEW S. BOYKINS,

Plaintiff,

Civil Action 2:21-cv-2403

v. Judge James L. Graham

Magistrate Judge Elizabeth P. Deavers

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

This matter is before the Court for consideration of Plaintiff Matthew S. Boykins’

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). 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 his inability to pay. Plaintiff states on his application that he has cash on hand or in

a checking, savings, or other account in the amount of $2,300.00, and that he earns

approximately $1,100.00 per month. (ECF No. 1 at PAGEID ## 2-3.) Plaintiff also states that

he lives with his parents, and “[t]hey allow me to live with them free of charge and, as such, I do

not have any financial responsibilities.” (Id. at PAGEID # 3.) Accordingly, Plaintiff's cash on

hand or in an account, plus his monthly income, is 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 his complaint

against the merits of his 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)

(quoting Behmlander, 2012 WL 5457466, at *2); see also Brown v. Dinwiddie, 280 F. App’x

2

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 his poverty, he is unable to pay for the costs of this litigation and

still provide for himself. Accordingly, it is RECOMMENDED that Plaintiff’s Application be

DENIED. The Undersigned further notes that should Plaintiff succeed in this action, he 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

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,

3

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: May 12, 2021 /s/ Elizabeth A. Preston Deavers _ _

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE

4