Opinion
CASE NO. 20-12737
10-14-2020
LAWRENCE LEWIS Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
HON. SEAN F. COX DISTRICT JUDGE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS
(ECF No. 2)
I. RECOMMENDATION
For the reasons set forth below, IT IS RECOMMENDED that Plaintiff's Application to Proceed In Forma Pauperis be DENIED.
II. REPORT
A. Introduction
This is a Social Security Disability Insurance benefits case, where Plaintiff is seeking judicial review of the Social Security Commissioner's decision in his case. (ECF No. 1.) Currently, Plaintiff has filed an application to proceed In Forma Pauperis. (ECF No. 2.) These matters have been referred to me by order of reference. (ECF No. 3.) And, this report and recommendation is filed pursuant to Woods v. Dahlberg, 894 F.2d 187 (6th Cir. 1990) (holding that magistrate judges lack authority to deny pauper status).
B. Governing Law
Since 1892, federal courts have possessed statutory power under 28 U.S.C. § 1915 to authorize commencement of civil actions in forma pauperis ("IFP"). Section 1915 is intended to insure that indigent persons have equal access to the judicial system by allowing them to proceed without having to advance the fees and costs associated with litigation. Flint v. Haynes, 651 F.2d 970, 972 (4th Cir. 1981). An indigent litigant seeking to proceed IFP must file an affidavit that includes a statement of that person's assets and his inability to pay fees. See 28 U.S.C. § 1915(a)(1). If the court grants the motion to proceed IFP, the litigant is excused from prepayment of filing fees. Id. A court may also direct the United States to pay expenses associated with printing records and transcripts, id. § 1915(c), and will order court officers to carry out duties associated with service of process. Id. § 1915(d).
In Adkins v. E.I. DuPont de Nemours, Inc., 335 U.S. 331, 69 S. Ct. 85, 93 L. Ed. 43 (1948), the United States Supreme Court held that one need not be absolutely destitute to enjoy the benefit of proceeding IFP. See also Lee v. McDonald's Corp., 231 F.3d 456, 458 (8th Cir. 2000). An affidavit to proceed IFP is sufficient if it states that one cannot, because of his or her poverty, afford to pay for costs of litigation and still provide herself and her family the necessities of life. Adkins, 335 U.S. at 339. Proceeding IFP "is a privilege, not a right, and permission to so proceed is committed to the sound discretion of the court." Camp v. Oliver, 798 F.2d 434, 437 (11th Cir. 1986).
In determining IFP eligibility, "courts will generally look to whether the persons are employed, the person's annual salary, and any other property or assets the person may possess." Schneller v. Prospect Park Nursing & Rehab. Ctr., No. 06-545, 2006 WL 1030284, at *1 (E.D. Pa. Apr. 18, 2006). Assets include equity in real estate and automobiles. United States v. Valdez, 300 F. Supp. 2d 82, 84 (D. D. C. 2004). In addition, "[f]ederal courts, which are charged with evaluating IFP Applications, have consistently considered not only an IFP applicant's personal income, but also his or her other financial resources, including the resources that could be made available from the applicant's spouse, or other family members." Helland v. St. Mary's Duluth Clinic Health System, No. 10-31 (RHK/RLE), 2010 WL 502781, at *1, n.1 (D. Minn. Feb. 5, 2010); accord Shahin v. Sec'y of Delaware, 532 F. App'x 123 (3rd Cir. 2013) (holding district court did not abuse its discretion in requiring plaintiff to disclose spouse's assets); Caldwell v. Providence Family Physician (Tillman's Corner) Seton Medical Management, 2005 WL 1027287, *2 (S.D. Ala. Apr. 29, 2005) (the ability to cover the costs of litigation and the necessities of life "has consistently depended in part on [the] litigant's actual ability to get funds from a spouse, a parent, and adult sibling or other next friend."); Fridman v. City of New York, 195 F. Supp. 2d 534, 537 (S.D.N.Y. 2002) (courts consider "the resources that the applicant has or 'can get' from those who ordinarily provide the applicant with the necessities of life,' such as 'from a spouse, parent, adult sibling, or other next friend.'").
C. Plaintiff's Affidavit
Plaintiff has no wages, and he has a monetary settlement from a lawsuit. (ECF No. 2, PageID.6.) The settlement funds are $96,000 in cash in a savings/checking account. (Id., PageID.7.) Plaintiff has assets of three vehicles and $1,500 invested in mutual funds. (Id.) He lists approximately $3,880 in monthly expenses, and debts amounting to $44,000. (Id.). Plaintiff identifies one dependent son. (Id.)
Plaintiff indicated that the $96,000 is the only source for his current obligations and that the "money is depleting." (Id., PageID.6-7.)
D. Analysis and Conclusion
I suggest that Plaintiff has not demonstrated that, because of his poverty, he is unable to pay the filing fee in this case. Plaintiff has considerable funds directly available in a savings/checking account, and that is in addition to other financial assets (e.g. vehicles, mutual funds) that could be made available. Accordingly, I suggest that Plaintiff's application be denied.
III. REVIEW
Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, "[w]ithin 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. A party may respond to another party's objections within 14 days after being served with a copy." Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are advised that making some objections, but failing to raise others, will not preserve all the objections a party may have to this Report and Recommendation. Willis v. Sec'y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Dakroub v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge.
Any objections must be labeled as "Objection No. 1," "Objection No. 2," etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as "Response to Objection No. 1," "Response to Objection No. 2," etc. If the Court determines that any objections are without merit, it may rule without awaiting the response. Date: October 14, 2020
S/ PATRICIA T. MORRIS
Patricia T. Morris
United States Magistrate Judge
CERTIFICATION
I hereby certify that the foregoing document was electronically filed this date through the Court's CM/ECF system which delivers a copy to all counsel of record. Date: October 14, 2020
By s/Kristen Castaneda
Case Manager