United States District Court, N.D. Ohio
AARON POLSTER, JUDGE.
REPORT & RECOMMENDATION (DOC. NO. 2)
Jonathan D. Greenberg, U.S. Magistrate Judge.
Laura LT Windsor (“Plaintiff”), challenges the
final decision of Defendant, Nancy A. Berryhill, Acting
Commissioner of Social Security (“Commissioner”),
denying her 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. (Doc. No. 2.) For the reasons set forth below, it is
recommended Plaintiff's IFP motion be DENIED.
6, 2018, Plaintiff, through counsel, filed a Complaint
challenging the final decision of the Commissioner denying
her 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 her spouse's gross average
monthly income over the past 12 months is $4, 244 and that
her spouse expects to receive the same amount in gross
monthly income next month. (Doc. No. 2-1 at 1-2.) Plaintiff
reports a total of $1, 500 in checking accounts and $2, 000
in a saving account, as well as $200 in cash. (Id.
at 2.) She also reports owning two vehicles, valued at $5000
and $9000 respectively. (Id.) Plaintiff does not
report any dependents. (Id. at 3.)
monthly liabilities total $3, 949 consisting of: rent or
mortgage payments ($490); utilities ($175); food ($600);
clothing ($100); laundry and dry cleaning ($25); medical and
dental expenses ($150); transportation ($250); recreation and
entertainment ($50); insurance ($200); local taxes ($25);
credit card payments ($1539); internet/TV ($120); and student
loans ($225). (Id. at 3-4.)
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 Fed.Appx. 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 at * 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 she and her spouse
received an average gross income of $4, 244 per month over
the past twelve months and, further, that they expect to
receive the same gross monthly income of $4, 244 in the
future. (Doc. No. 2-1 at 1.) Thus, Plaintiff's average
gross monthly income exceeds her average monthly expenses of
$3, 949.00, by a total of $295.
Court further notes Plaintiff reports she and her spouse have
a significant amount of money in cash, checking, and savings.
Specifically, she reports $2000 in savings, $1500 in checking
and $200 in cash. (Id. at 2.) Plaintiff also reports
two newer motor vehicles, valued collectively at $14, 000.
(Id.) The Court recognizes Plaintiff's statement
she must spend a significant amount of money on food each
month due to her dietary restrictions. (Id. at 4-5.)
However, despite her reported $600 monthly food bill,
Plaintiff still reports $3, 700 in combined cash and
checking/savings accounts. Thus, and combined with the fact
she and her spouse's average monthly gross income exceeds
their expenses by $295 per month, 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 her complaint against
the merits of her 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 Plaintiff's 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 ...