IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

WAYNE ALAN COBB,

Plaintiff,

Civil Action 2:23-cv-1399 v. Judge Edmund A. Sargus, Jr. Magistrate Judge Elizabeth P. Deavers

ELFORD INC.,

Defendant.

REPORT AND RECOMMENDATION

This matter is before the Court for consideration of Plaintiff’s 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,

(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.,

, (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.”

. 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.”

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.

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,

, at *1 (E.D. Mich. May 29, 2014). Here, the information set forth in Plaintiff’s in forma pauperis application does not demonstrate his inability to pay. Plaintiff’s application reflects that he is single, earns $2,080.00 per month from his employment, and receives $2,000.00 per month from Social Security. (ECF

No. 1 at PAGEID # 2.) This places his income at more than three times the poverty level of income for a single person.1 It does not appear, therefore, that the cost of filing the instant matter is beyond Plaintiff’s means. See Schottenstein v. City of Bexley, No. 2:20-CV-6133,

, at *1 (S.D. Ohio Jan. 5, 2021), report and recommendation adopted, No. 2:20-CV-6133,

(S.D. Ohio Feb. 8, 2021) (denying motion to proceed in forma pauperis where Plaintiff’s income was more than twice the poverty level); Behmlander v. Comm’r of Soc. Sec., No. 12-14424,

, at *1 (E.D. Mich. Nov. 8, 2012) (same). In sum, in view of Plaintiff’s income, 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. It is, therefore, RECOMMENDED that Plaintiff’s Application to Proceed In Forma Pauperis, ECF No. 1, be DENIED and that he be ordered to pay the required $402 filing fee within FOURTEEN (14) DAYS if he intends to proceed.

1 A review of the 2023 Federal Poverty Guidelines available at aspe.hhs.gov indicates that the poverty guideline for a one person household is an annual income of $14,580.00, before taxes. Plaintiff’s reported monthly net income of $4,080.00 equates to an annual net income of $48,960.00. 2 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.

(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. Even when timely objections are filed, appellate review of issues not raised in those objections is waived. Robert v. Tesson,

(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: April 25, 2023 /s/ Elizabeth A. Preston Deavers _ _ ELIZABETH A. PRESTON DEAVERS UNITED STATES MAGISTRATE JUDGE

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