Pitman Jr. v. State Of Ohio

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON MICHAEL S. PITMAN, JR., : Case No. 3:22-cv-283 : Plaintiff, : : District Judge Michael J. Newman vs. : Magistrate Judge Peter B. Silvain, Jr. : STATE OF OHIO INC., et al., : : Defendants. : : REPORT AND RECOMMENDATION1 This matter is before the Court on Plaintiff’s motions for leave to proceed in forma pauperis (Doc. #s 1, 4). For the reasons set forth below, the undersigned RECOMMENDS Plaintiff’s motions for leave to proceed in forma pauperis (Doc. #s 1, 4) be DENIED and that Plaintiff be ORDERED to pay the filing fee of $402.00.

On October 5, 2022, Plaintiff filed a motion for leave to proceed in forma pauperis in which the affidavit of poverty was left completely blank. (Doc. #1, PageID #s 2-3). The next day, the Clerk of Court issued a Notice of Deficiency, advising Plaintiff that he failed to include a civil cover sheet or a completed application to proceed in forma pauperis. (Doc. #2). The Notice of Deficiency directed Plaintiff to correct the deficiencies within thirty days. Id. More than two months later, Plaintiff filed a second motion for leave to proceed in forma pauperis. (Doc. #4). In the second motion, Plaintiff asserted that he “ha[s] no means of ‘money’ and therefore cannot pay the cost in this case.” (Doc. #4, PageID #24). However, Plaintiff failed to complete the application or indicate whether he has any income or expenses. See id. at 24-37. As a result, the undersigned Attached is a NOTICE to the parties regarding objections to this Report and Recommendation. ordered Plaintiff to submit a completed application to proceed in forma pauperis on or before May 18, 2023. (Doc. #6, PageID #322).

Instead of completing the application to proceed in forma pauperis, Plaintiff submitted objections to the undersigned’s Order that spanned over 20 single-spaced pages and included an additional 41 pages of attachments, which served to generally challenge the authority of the Court to require Plaintiff to submit the required documentation in order to be granted leave to proceed in forma pauperis. See Doc. #7, PageID #s 324-84. Thereafter, District Judge Michael J. Newman overruled Plaintiff’s objections and ordered Plaintiff to either (1) comply with the undersigned’s Order by submitting a completed motion to proceed in forma pauperis or (2) pay the full filing fee mandated by 28 U.S.C. § 1914(a). (Doc. #8, PageID #s 386-87). District Judge Newman further advised Plaintiff that, if he failed to either submit the completed motion for in forma pauperis or pay the full filing fee by May 18, 2023, his case could be dismissed. Id. at 387 (citing Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991)).

Following District Judge Newman’s Order, Plaintiff filed a document captioned “Rebuttal of Order and Proof of Claims and Declarations[,]” which served to generally set out Plaintiff’s objections to the requirement that he complete a financial affidavit for the motion to proceed in forma pauperis. See Doc. #9, PageID #s 388-93. Plaintiff did not comply with District Judge Newman’s Order in that he neither submitted a completed motion to proceed in forma pauperis nor paid the full filing fee by May 18, 2023.

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. In Adkins v. E.I. DuPont de Nemours & Co. Inc., the Supreme Court set forth the legal standard applicable to a motion to proceed in forma pauperis. 335 U.S. 331 (1948). An affidavit of poverty is sufficient if it reflects that the plaintiff cannot pay the Court’s filing fee without depriving himself of the “necessities of life.” Id. at 339 (internal quotation marks omitted). Although the plaintiff need not be totally destitute in order to proceed in forma pauperis, paying the filing fee must be more than a mere hardship. See Foster v. Cuyahoga Dep’t of Health & Human Servs., 21 F. App’x 239, 240 (6th Cir. 2001) (noting that “the question is whether the court costs can be paid without undue hardship”). Consequently, unless it is clear that the one-time payment of the Court’s filing fee will render the plaintiff unable to provide for himself and his dependents, the Court cannot grant him in forma pauperis status. See Adkins, 335 U.S. at 339.

In this case, Plaintiff has failed to submit a completed in forma pauperis application that demonstrates that paying the one-time filing fee of $402.00 would be an undue hardship. As a result, 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 and his dependents. It is therefore RECOMMENDED that Plaintiff’s motions for leave to proceed in forma pauperis (Doc. #s 1, 4) be DENIED and that he be ORDERED to pay the $402.00 filing fee on or before October 27, 2023 if he intends to proceed with his suit. Plaintiff is advised that failure to comply may result in a Report and Recommendation to the District Judge that this matter be dismissed for lack of prosecution. See Fed. R. Civ. P. 41(b); see also Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962).

October 13, 2023 s/Peter B. Silvain, Jr. Peter B. Silvain, Jr. United States Magistrate Judge NOTICE REGARDING OBJECTIONS Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendation within FOURTEEN days after being served with this Report and Recommendation. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendation is based in whole or in part upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party’s objections within FOURTEEN days after being served with a copy thereof.

Failure to make objections in accordance with this procedure may forfeit rights on appeal.

See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).