UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Deborah Ann Byington, 

Plaintiff, 

v. 

Commissioner of Social Security, 

Defendant. 

________________________________/

Case No. 15-cv-10016 

Hon. Judith E. Levy 

Mag. Judge Michael J. Hluchaniuk

ORDER REJECTING MAGISTRATE JUDGE’S [5] REPORT AND 

RECOMMENDATION, GRANTING PLAINTIFF’S [2] 

APPLICATION TO PROCEED IN FORMA PAUPERIS, AND 

DIRECTING SERVICE BY THE U.S. MARSHAL

This matter is before the Court on the Magistrate Judge’s Report 

and Recommendation (Dkt. 5), in which the Magistrate Judge 

recommends denying plaintiff Deborah Ann Byington’s application to 

proceed in forma pauperis (Dkt. 2). Byington timely filed objections to 

the report. (Dkt. 6.) 

District courts review de novo those portions of a report and 

recommendation to which a specific objection has been made. 28 U.S.C. 

§ 636(b)(1)(C). “De novo review in these circumstances entails at least a 

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review of the evidence that faced the magistrate judge; the Court may 

not act solely on the basis of a report and recommendation.” Spooner v. 

Jackson, 321 F. Supp. 2d 867, 868-69 (E.D. Mich. 2004). 

 A court may allow a plaintiff to commence a civil action without 

prepayment of fees upon submission of an affidavit demonstrating that 

the plaintiff “is unable to pay such fees or give security therefor.” 28 

U.S.C. § 1915. A plaintiff need not be “absolutely destitute” to qualify. 

Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). 

“[A]n affidavit is sufficient which states that one cannot because of his 

poverty pay or give security for the costs . . . and still be able to provide 

himself and dependents with the necessities of life.” Id. 

 Plaintiff is married and has no dependents. (Dkt. 2, IFP 

Application 2.) She indicates that she is not employed and has no pay 

or wages. (Id. at 1.) She received no income from any sources in the 12 

months preceding her application. (Id.) She appears to own her home 

and has a checking account containing $200.00 and a savings account 

containing $5,298.00. (Id. at 2.) Plaintiff has no other items of value. 

(Id.) She has monthly housing expenses of $1272.00 and monthly 

medical expenses of $100.00. 

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 Considering this information in light of two cases, the Magistrate 

Judge found plaintiff has not demonstrated an inability to pay the filing 

fee. (Dkt. 5, Report & Recommendation 2-3.) The Court finds those 

cases inapposite. In the first, Powell v. Harris, No. 08-344, 2008 WL 

4279494, at *3 (N.D.N.Y. Sept. 15, 2008), the applicant was employed 

and earned $350 per week, and had a savings account containing $1500. 

Byington, however, is unemployed and has no income. In the second, 

Brown v. Dinwiddie, 280 F. App’x 713, 715-16 (10th Cir. 2008), the 

applicant was a prisoner and therefore had no living expenses. 

Moreover, a state law expressly permitted funds from an inmate’s 

savings account to be used for fees or costs in filing a federal action. Id.

at 715. Here, Byington has indicated monthly living expenses 

equivalent to approximately one quarter of her savings. (See Dkt. 2.) 

On that basis, the Court finds Byington has demonstrated an inability 

to pay fees for filing a civil action. 

 Accordingly, the Magistrate Judge’s Report and Recommendation 

is rejected; 

 Plaintiff’s application to proceed in forma pauperis (Dkt. 2) is 

GRANTED; and 

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 The U.S. Marshals Service is directed to attempt service of 

plaintiff’s Complaint (Dkt. 1) upon the Commissioner of Social Security, 

using the information submitted by plaintiff in the U.S. Marshal Form 

285 (Dkt. 3.) 

 IT IS SO ORDERED. 

Dated: February 3, 2015 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on February 3, 2015. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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