Blosser v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ALISA MARIE B.1,

Plaintiff,

Civil Action 2:22-cv-2622

v.

Magistrate Judge Elizabeth P. Deavers

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

OPINION AND ORDER

This matter is before the Court for consideration of Plaintiff’s Application to Proceed In

Forma Pauperis. (ECF No. 2.) For the following reasons, Plaintiff’s Application is 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

1 Pursuant to General Order 22-01, due to significant privacy concerns in social security cases, any

opinion, order, judgment or other disposition in social security cases in the Southern District of Ohio shall

refer to plaintiffs only by their first names and last initials.

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 her inability to pay. Rather, the application reflects that her household income for a

family of two is approximately $6500.00 per month or $78,000.00 per year, which is attributable

to her spouse’s income. (Pl.’s Application, ECF No. 2, at p. 2.) This amount of yearly income

places Plaintiff’s income at nearly four times the poverty level of income for a family of two.2

See Behmlander v. Comm’r of Soc. Sec., No. 12-14424, 2012 WL 5457383, at *1 (E.D. Mich.

Nov. 8, 2012) (denying motion to proceed in forma pauperis where the Plaintiff’s income was

more than twice the federal poverty level). To be clear, the application also reflects monthly

2 A review of the 2023 Federal Poverty Guidelines available at aspe.hhs.gov indicates an annual

income level of $19,720.00 or a monthly income level of $2313.00 for a 2-person household.

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expenses totaling approximately $6514.00. (Pl.’s Application, ECF No. 1, at p. 3.) That

monthly shortfall, however, is not dispositive under the circumstances here. Plaintiff’s

application further reflects cash on hand in the amount of $2100.00, a home valued at

$90,000.00, a 2022 vehicle valued at $31,000.00, a 2013 vehicle valued at $2500, and

unidentified “other assets” valued at $29,000.00. Courts routinely look to the availability of

these other types of assets in considering an application to proceed in forma pauperis. See, e.g.,

Stansberry v. Pappadeaux, No. 1:22-CV-667, 2023 WL 2133488, at *1 (S.D. Ohio Feb. 21,

2023) (denying motion for leave to proceed in forma pauperis where plaintiff’s monthly income

exceeded his expenses by only $105.95 but plaintiff could pay balance from his admitted

savings).

Considering these other assets, 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 (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). Moreover, these

other assets aside, Plaintiff identifies monthly household credit card expense of $950.00, but

provides no explanation to allow the Court to conclude that this expense could not reasonably be

reduced to address meeting the required filing fee. See Muehlfeld v. Comm'r of Soc. Sec. Admin.,

No. 3:23-CV-00225-JJH, 2023 WL 2988316, at *3 (N.D. Ohio Feb. 14, 2023), report and

recommendation adopted, No. 3:23-CV-225, 2023 WL 3847287 (N.D. Ohio June 6, 2023)

(denying in forma pauperis application and noting that plaintiff reasonably could reduce phone

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and internet charges to pay the filing fee and citing Lewis v. McKinley County Bd. of Cty.

Comm'rs, 425 F. App'x 723, 732 (10th Cir. June 7, 2011) (adopting district court's reduction of

claimed monthly expenses by amounts that were excessive or not for necessities)). This lack of

explanation is compounded by Plaintiff’s identification of expenses more typically found to

cover necessities, i.e., food, medical and dental expenses, insurance, taxes, and transportation

costs, as expenses separate and distinct from the monthly credit card expense.

In view of Plaintiff’s available income and admitted assets, the Court 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, Plaintiff’s Application is DENIED.

Plaintiff shall remit the full filing fee ($402.00) within FOURTEEN DAYS OF THE DATE

OF THIS ORDER. Plaintiff is ADVISED that her failure to pay the filing fee as directed may

result in the dismissal of this action for failure to prosecute. The Court 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.

IT IS SO ORDERED.

Date: September 18, 2023 /s/ Elizabeth A. Preston Deavers _ _

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE

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