Bennett, Jr. v. Gerace, II et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT M. BENNETT, JR.,
Plaintiff,
v. 	Civil Action 2:26-cv-209
Chief District Judge Sarah D. Morrison
Magistrate Judge Kimberly A. Jolson
DOMINIC S. GERACE, II, et al.,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff Robert Bennett, Jr. brings this case against Dominick Gerace, II and Pamela
Bondi, seeking compensatory damages and an injunction “to expand the interpretation of” the
Supreme Court’s holding in Bostock v. Clayton Cnty., Georgia, 590 U.S. 644 (2020). 	(See
generally Doc. 1-1). This matter is before the Court on Plaintiffs’ Motion for Leave to Proceed in
forma pauperis (Doc. 1). 	For the following reasons, the Undersigned RECOMMENDS the
Motion 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 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 the one-time payment of the court’s filing fee
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clearly will render the plaintiff unable to provide for herself, the Court cannot grant her in forma
pauperis status. See Adkins, 335 U.S. at 339.
Based on his affidavit, the Undersigned determines that Plaintiff has sufficient funds to pay
the filing fee. Plaintiff claims to make $20.49 per hour in gross pay, and about $18 per hour in
take-home pay. (Doc. 1 at 1). On a monthly basis, Plaintiff’s gross monthly income is $3,278.40,
with a net income of $2,880. 	Plaintiff also claims to have $2,500 in cash, or in a checking or
savings account at the time of filing his Motion. (Id. at 2). As for Plaintiff’s monthly expenses,
he claims to pay about $3,200 per month. (Id.). While his monthly expenses outweigh his monthly
income, Plaintiff represents that he currently has more than enough cash on hand or in an account
to pay the one-time filing fee. Based on these representations, it does not appear that paying the
fee would cause Plaintiff to be deprived of 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 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 his Motion for Leave to Proceed in forma pauperis
(Doc. 1) be DENIED. If this recommendation is adopted, it is further RECOMMENDED that
Plaintiff be required to pay the filing fee within thirty (30) days of adoption or face dismissal. If
this recommendation is adopted, and Plaintiff pays the filing fee, he will be responsible for service.
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
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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: 	February 24, 2026 	/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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