United States District Court, N.D. Ohio
Y. PEARSON JUDGE.
REPORT & RECOMMENDATION (DOC. NO. 2)
Jonathan D. Greenbers U.S. Magistrate Judge.
Daniel Hines (“Plaintiff”), challenges the final
decision of Defendant, Carolyn W. Colvin, Acting Commissioner
of Social Security (“Commissioner”), denying his
application for disability benefits under the Social Security
Act, 42 U.S.C. §§ 416(i) & 423.
(“Act”). This Court has jurisdiction pursuant to
42 U.S.C. § 405(g). This case is before the undersigned
United States Magistrate Judge pursuant to an automatic
referral under Local Rule 72.2 for a Report and
Recommendation. Plaintiff has requested leave to proceed
in forma pauperis (“IFP”) in this
matter. For the reasons set forth below, it is recommended
Plaintiff's IFP motion be DENIED.
November 7, 2017, Plaintiff, through counsel, filed a
Complaint challenging the final decision of the Commissioner
denying his application for social security disability
benefits. (Doc. No. 1.) A motion to proceed IFP was filed the
same day. (Doc. No. 2.)
Motion, Plaintiff reports his spouse's gross average
monthly income over the past 12 months is $4, 020 and that
his spouse expects to receive $3, 520 in gross monthly income
next month. (Id. at 1-2.) With regard to his and his
spouse's assets, Plaintiff reports a home worth $175,
000; two motor vehicle valued collectively at $5, 000; and
$451.92 in various checking and savings accounts.
(Id. at 2.)
monthly liabilities total $3, 181.00, consisting of: mortgage
payments ($1, 300); utilities ($450); food ($500); clothing
($25); medical and dental expenses ($520); transportation
($40); recreation/entertainment ($30); insurance ($220); and
credit card payments ($96). (Id. at 3-4.) Plaintiff
also reports his spouse pays “medicare, dental, vision
insurance premiums $450.00 [illegible] that are auto deducted
from paycheck.” (Id. at 4.)
Law and Analysis
to 28 U.S.C. § 1915, this Court “may authorize the
commencement, prosecution or defense of any suit, action or
proceeding, civil or criminal, or appeal therein, without
prepayment of fees or security therefor, by a person who
submits an affidavit that includes a statement of all assets
such [person] possesses that the person is unable to pay such
fees or give security therefor.” 28 U.S.C. §
1915(a)(1). The Sixth Circuit has recognized that
“pauper status does not require absolute
destitution.” Foster v. Cuyahoga Dep't of
Health & Human Servs., 21 F. App'x 239, 240 (6th
Cir. 2001) (citing Sears, Roebuck & Co. v. Charles W.
Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir.
1988)). Rather, the relevant question is “whether the
court costs can be paid without undue
hardship.” Id. (emphasis added).
addition to considering an individual IFP applicant's
monthly income, federal courts have consistently considered
“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. Helland v.
St. Mary's Duluth Clinic Health Sys., 2010 WL
502781, *1, n1 (D. Minn. Feb. 5, 2010); Behmlander v.
Comm'r of Soc. Sec., 2012 WL 5457466, *2 (E.D. Mich.
Oct, 16, 2012); Levet v. Comm'r of Soc. Sec.,
2014 WL 3508893 at * 2 (N.D. Ohio July 15, 2014); see
also Reynolds v. Crawford, 2009 WL 3908911, * 1 (S.D.
Ohio Nov. 17, 2009) (“The 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.”) (collecting cases);
Monti v. McKeon, 600 F.Supp. 112, 114 (D. Conn),
aff'd, 788 F.2d 1 (2d Cir. 1985) (Table Decision)
(“If the plaintiff is supported by her spouse, and her
spouse is financially able to pay the costs of this appeal,
it follows that the plaintiff's own lack of funds will
not prevent her from gaining access to the courts.”).
The decision whether to permit a litigant to proceed IFP is
within the Court's discretion. Id. See also
Ciavarella v. Comm'r of Soc. Sec., 2013 WL 5354091
at * 1 (N.D. Ohio Sept. 24, 2013).
Plaintiff's application reflects he and his spouse
received an average gross income of $4, 020 per month over
the past twelve months and, further, that they expect to
receive a gross monthly income of $3, 520 in the future.
Thus, in either event, Plaintiff's average monthly income
exceeds his average monthly expenses of $3, 181. Moreover,
Plaintiff reports assets including a home valued at $175,
000, motor vehicles valued at $5, 000, and $451.92 in
checking/savings accounts. While Plaintiff reports $450 is
automatically deducted from his spouse's paycheck, this
still leaves a monthly income over the past twelve months of
$3, 570 and an expected monthly income of $3, 070 in the
future. In light of Plaintiff and his spouse's other
assets, and in the absence of evidence or an explanation to
the contrary, it does not appear the cost of filing would
impose an undue hardship on Plaintiff. Rather, this is a case
where Plaintiff must “weigh the financial constraints
posed by pursuing [his] complaint against the merits of
[his]claims." Behmlander, 2012 WL 5457466 at
*2 Accordingly, it is recommended the Court
find Plaintiff is not eligible to proceed IFP in this Court.
foregoing reasons, it is recommended Plaintiffs Motion for
Leave to Proceed IFP (Doc. No. 2) be DENIED. It is further
recommended that, if this Report & Recommendation is
adopted. Plaintiff be ordered to pay the $400 ...