Stansberry v. Curritos

• Court: District Court, S.D. Ohio
• Decided: February 9, 2023
• Docket: 1:23-cv-00038
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

BRETT STANSBERRY, Case No. 1:23-cv-38 Plaintiff, Barrett, J. v. Bowman, M.J.

CURRITOS,

Defendant.

REPORT AND RECOMMENDATION In this, the fourth case he has filed in this Court to date, Plaintiff Brett Stansberry seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1). Plaintiff’s motion states that he is presently employed at Hoff Cafeteria Xavier University. In response to the question, “How much do you earn per month?” Plaintiff states: “I don’t know job is unstable, breaks harass ement [sic].” (Doc. 1 at 2, PageID 2). However, Plaintiff also states that he has significant amount of cash on hand or funds in a savings, checking or other account. (Doc. 1 at 3, PageID 3). Additionally, Plaintiff lists no creditors or monthly debts. (Id.) The undersigned takes judicial notice that in two prior cases filed by Plaintiff, the assigned magistrate judge has recommended the denial of Plaintiff’s applications to proceed in forma pauperis based upon similar responses made on the applications to proceed without payment of the filing fee. See Stansberry v. Police Department (Springdale OH), Case No. 1:23-cv-06-MRB-SKB; Stansberry v. Pappadeaux, Case No. 1:22-cv-667-DRC-KLL.1 In the above-captioned case, Plaintiff represents that as of January 24, 2023, he has $9,000.00 in “cash on hand or in a savings, checking or other account.” That sum represents a significant increase from the $5,000.00 that Plaintiff reported in Case No. 1:22-cv-667-DRC-KLL, but somewhat less than the $10,000.00 reported on the application to proceed in forma pauperis filed in Case No. 1:23-cv-06-

MRB-SKB. Based upon the responses provided on the in forma pauperis application in this case, the undersigned repeats this Court’s prior analysis: The Court is unable to conclude from plaintiff’s affidavit that his income and assets are insufficient to provide himself with the necessities of life and still have sufficient funds to pay the full filing fee of $402.00 in order to institute this action. See Adkins v. E.I. DuPont De Nemours & Co., Inc., 335 U.S. 331, 339 (1948). Therefore, plaintiff’s motion to proceed in forma pauperis should be denied.

(Case No. 1:22-cv-667-DRC-KLL, Doc. 2 at 1, PageID 360; see also Case No. 1:23-cv- 06-MRB-SKB). The undersigned further notes that because Plaintiff is not entitled to file his complaint in forma pauperis, the complaint has not been filed of record or screened under 28 U.S.C. § 1915(e)(2)(B) to determine whether it is legally frivolous for failure to state a claim. III. Conclusion and Recommendation For the reasons stated, IT IS RECOMMENDED THAT: 1. Plaintiff’s motion to proceed in forma pauperis (Doc. 1) be DENIED;

1Plaintiff’s objections to the Report and Recommendations (“R&Rs”) filed in Case No. 1:22-cv-667-DRC- KLL and in Case No. 1:23-cv-06-MRB-SKB remain pending before the presiding district judges. In another employment discrimination case, Stansberry v. Raising Caines, Case No. 1:22-cv-543-JPH-KLL, Magistrate Judge Karen Litkovitz granted Plaintiff leave to proceed in forma pauperis but filed an R&R that recommended granting Defendant’s motion to compel arbitration and dismissing the case. (Id., Doc.15). Plaintiff’s objection to the R&R filed in Case No. 1:22-cv-543-JPH-KLL also remains pending before the presiding district judge. 2. If this recommendation is adopted, Plaintiff should be GRANTED an EXTENSION OF TIME of thirty (30) days from the date of any Order adopting the Report and Recommendation to pay the required filing fee of $402.00. Plaintiff should be notified that his complaint will not be deemed “filed” until the appropriate filing fee is paid, see Truitt v. County of Wayne, 148 F.3d 644, 648

(6th Cir. 1998), and that if he fails to pay the filing fee within thirty (30) days this matter will be closed. s/Stephanie K. Bowman____ Stephanie K. Bowman United States Magistrate Judge UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

BRETT STANSBERRY, Case No. 1:23-cv-38 Plaintiff, Barrett, J. v. Bowman, M.J.

NOTICE Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of the filing date of this R&R. That period may be extended further by the Court on timely motion by either side for an extension of time. All objections shall specify the portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in support of the objections. A party shall respond to an opponent’s objections within FOURTEEN (14) DAYS after being served with a copy of those objections. 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 (6th Cir. 1981).