Sow v. Sysco Corp

Opinion

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

PAPA M. SOW,

Plaintiff, Case No. 2:23-cv-04125 v. Chief Judge Algenon L. Marbley Magistrate Judge Kimberly A. Jolson SYSCO CORP., et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff filed a Motion for Leave to Proceed in forma pauperis on December 15, 2023. (Doc. 1). From its review of the Motion, the Court was unable to determine Plaintiff’s income, because many sections of Plaintiff’s Motion were blank. (Doc. 2). The Court ordered Plaintiff to file a revised motion to proceed without prepayment of fees that answered those sections. (Id.). The Court gave Plaintiff until January 11, 2024, to do so, and Plaintiff filed his revised Motion for Leave to Proceed in forma pauperis on January 10, 2024. (See Docs. 2, 3). For the following reasons, the Undersigned RECOMMENDS Plaintiff’s Motion for Leave to Proceed in forma pauperis (Doc. 3) be DENIED. The Supreme Court, in Adkins v. E.I. DuPont de Nemours & Co., Inc., 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 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, the court cannot grant him in forma pauperis status. See Adkins, 335 U.S. at 339. In his affidavit, Plaintiff said that he earns over $3,200 per month from employment. (Doc. 3 at 2). Plaintiff represented that he has $1,500 in the bank and that he owns his home, which is

worth $290,000. (Id. at 3). Plaintiff also says he pays $600 to dependents and listed some creditors. (Id. at 2–3). Based on these representations, it does not appear that paying the one-time filing fee would cause Plaintiff to be deprived the necessities of life. See Adkins, 335 U.S. at 339; see also Bush v. Ohio Dep’t of Rehab. & Corr., No. 2:05-CV-0667, 2007 WL 4365381, at *1 (S.D. Ohio Dec. 10, 2007) (noting that “[i]n forma pauperis status is usually reserved either for indigent prisoners or for persons who subsist on small fixed-income payments such as social security, unemployment compensation, or public assistance and who would truly be required to forego food, shelter, clothing, or some other necessity were they to devote any of their scant resources to paying a judicial filing fee”). Accordingly, it is RECOMMENDED that Plaintiff’s Motion for Leave to Proceed in

forma pauperis (Doc. 3) be DENIED. If this recommendation is adopted, it is further RECOMMENDED that Plaintiff be required to pay the filing fee within seven (7) days of adoption. Procedure on Objections If any party objects to this Report and Recommendation, that party may, within fourteen (14) days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A Judge of this Court shall make a de novo determination of those portions of the Report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence, or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report and Recommendation de novo and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). IT IS SO ORDERED.

Date: January 16, 2024 /s/ Kimberly A. Jolson KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE