IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DEBORAH A. LANDAKER,

Plaintiff,

 Civil Action 2:12-cv-1070

v. Judge James L. Graham

 Magistrate Judge Elizabeth P. Deavers

 

COMMISSIONER OF SOCIAL SECURITY,

Defendant. 

REPORT AND RECOMMENDATION

Plaintiff, Deborah A. Landaker, brings this action under 42 U.S.C. §§ 405(g) and

1383(c)(3) for review of a final decision of the Commissioner of Social Security

(“Commissioner”) denying her application for Social Security Disability Insurance Benefits and

Supplemental Security Income. The Clerk of Court received the Complaint November 20, 2012.

(ECF No. 1-2.) This matter is before the United States Magistrate Judge for consideration of

Plaintiff’s Motion to Proceed Without Prepayment of Fees. (ECF No. 1.) For the reasons that

follow, it is RECOMMENDED that Plaintiff’s Motion be DENIED WITHOUT

PREJUDICE. 

According Plaintiff’s application, she is married and has approximately $4,800 in cash in

her joint checking account with her spouse. In addition, she represents that she and her husband

own two vehicles, a 2007 Honda CRV and a 2007 Chevy truck, both of which they will owe no

money on in two months. It appears that Plaintiff and her husband have at least $157,000 in real

estate equity. With regard to expenses, Plaintiff represents that her household spends $271 per

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month on phone and cable, $550 per month on “deer feed,” and approximately $2000 in

unidentified expenses per month on her Visa card, among other expenses.1 She reports no

personal monthly income, and does not identify whether her husband has monthly income. 

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. 

Thus, prior to authorizing a plaintiff to commence and prosecute a suit without prepayment of

fees, a court must determine whether the applicant has demonstrated his or her inability to pay

such fees. 28 U.S.C. § 1915(a); Kelly v. City of Milwaukee, No. 12–C-0213, 2012 WL 1600446,

at *1 (E.D. Wis. May 4, 2012) (court must determine that “the litigant is unable to pay the costs

of commencing the action” before authorizing the litigant to proceed in forma pauperis). 

Here, the information set forth in Plaintiff’s in forma pauperis affidavit does not

demonstrate her inability to pay. Rather, the affidavit demonstrates that Plaintiff has significant

valuable assets, including approximately $5,000 in cash, two vehicles, and at least $157,000 in

real estate equity. Further, nothing in the affidavit explains why $550 per month in deer feed or

$271 per month in phone and cable expenses constitute reasonable necessities. Nor does the

affidavit delineate what expenses comprise the approximately $2,000 she spends on her Visa

card each month or explain how she is able to pay off the entire balance each month. The

affidavit likewise fails to identify her spouse’s monthly income. For these reasons, it is

recommended that her application be denied without prejudice to renewal. See Johnson v.

Cargill, Inc., No. 08-2052, 2008 WL 501341, at *1 (W.D. Tenn. Feb. 21, 2008) (denying motion

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She notes in her affidavit that she and her husband pay off the approximately $2,000

balance in full each month. 

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to proceed in forma pauperis where the Plaintiff’s affidavit revealed that her household income

exceeded their reasonable monthly expenses); Daniel v. Dep’t of Vet. Affairs, No. 07-2554, 2008

WL 276481, at *1 (W.D. Tenn. Jan. 30, 2008) (application denied where Plaintiff failed to

disclose how she was able to pay her monthly mortgage of $1736 with the monthly earnings

disclosed in her affidavit); Elliot v. Chase Bank, No. 4:12-CV-324, 2012 WL 2354424, at *1

(N.D. Tex. May 24, 2012) (considering spouse’s income on in forma pauperis application and

gathering cases in which courts found it appropriate to consider a spouse’s income in ruling on

requests to proceed in forma pauperis); Azzun v. Kansas Dep’t of Health & Environ., No. 09-

4144-SAC, 2011 WL 13689, at *1–2 (D. Kan. Jan. 4, 2011) (denying in forma pauperis

application even though the plaintiff had no income, basing denial, in part, upon spouse’s

income, the real estate equity available to the plaintiff, and the discretionary nature of the listed

expenses). 

In sum, it is RECOMMENDED that the Court DENY Plaintiff’s Motion WITHOUT

PREJUDICE to renewal upon submission of a more detailed affidavit demonstrating that she is

unable to pay the filing fee and provide for the necessities of life, granting her fourteen days to

either pay the required filing fee of $350 or submit a renewed motion to proceed in forma

pauperis. 

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. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

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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. See, e.g., Pfahler v. Nat’l

Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the

magistrate judge’s recommendations constituted a waiver of [th defendant’s] ability to appeal the

district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding

that defendant waived appeal of district court’s denial of pretrial motion by failing to timely

object to magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (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))

IT IS SO ORDERED. 

Date: November 28, 2012 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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