Lett v. United Association of Plumbers and Steamfitters et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TIMOTHY LETT,
Plaintiff, 	Case No. 2:26-cv-4
v. 	District Judge Algenon L Marbley
Magistrate Judge Kimberly A. Jolson
UNITED ASSOCIATION OF PLUMBERS
AND STEAMFITTERS, et al.,
Defendants.
ORDER AND REPORT AND RECOMMENDATION
Before the Court are several motions filed by Plaintiff (Docs. 1, 3, 6, 7). For the following
reasons, the Undersigned RECOMMENDS that Plaintiff’s second Motion for Leave to Proceed
in forma pauperis be DENIED (Doc. 6), and his Motion for Extension of Time be GRANTED
(Doc 7). Additionally, the Court DENIES as moot Plaintiff’s first Motion for Leave to Proceed
in forma pauperis (Doc. 1), and DENIES without prejudice his Motion for Preservation of
Evidence (Doc. 3).
I. 	In Forma Pauperis and Extension of Time Motions
To begin, when Plaintiff filed this action, he sought leave to proceed in forma pauperis,
(Doc. 1). See 28 U.S.C. § 1915. 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). 	“Courts generally examine an applicant’s employment, income, expenses, and any
property or assets the applicant possesses when considering applications to proceed in forma
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pauperis.” Motley v. Dream Living LLC, No. 2:23-CV-3478, 2024 WL 2962791, at *1 (S.D. Ohio
June 12, 2024). 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 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. “Proceeding IFP
‘is a privilege, not a right, and permission to so proceed is committed to the sound discretion of
the court.’” Carroll v. Onemain Fin. Inc., No. 14-CV-14514, 2015 WL 404105, at *2 (E.D. Mich.
Jan. 29, 2015) (citation omitted).
In his initial financial affidavit, Plaintiff indicated that he was unemployed. (Id. at 1). After
observing that he did not provide complete information, the Court ordered Plaintiff to file a revised
motion. (Doc. 5). Plaintiff did so, with one important difference on his second form. (Doc. 6).
Plaintiff noted that he retained employment, beginning on January 7, 2026, and his take home
wages are $3,337.50 per week. (Id. at 1). Per month, it seems, Plaintiff will make approximately
$13,350. Based on these representations, it is not clear that paying the one-time filing fee would
cause Plaintiff to be deprived the necessities of life. 	See Adkins, 335 U.S. at 339. 	Plaintiff’s
anticipated monthly income exceeds his anticipated monthly expenses by a wide margin. 	(See
Doc. 6 at 2 (listing as expenses two rent payments, two internet payments, an electric payment,
two car notes, gas, car insurance, food, and a cellphone bill)). These circumstances do not justify
granting Plaintiff in forma pauperis status. Cf. 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
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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”). Instead, this “appears to be a case where Plaintiff
must ‘weigh the financial constraints posed by pursuing [his] complaint against the merits of [his]
claims.’” 	Henderson v. Pappas Trucking LLC AG Container, No. 2:21-CV-2088, 2021 WL
2003986 (S.D. Ohio May 4, 2021) (citation omitted), report and recommendation adopted, No.
2:21-CV-2088, 2021 WL 2002408 (S.D. Ohio May 19, 2021).
Accordingly, the Undersigned RECOMMENDS that Plaintiff’s Motion to Proceed in
forma pauperis (Doc. 6) be DENIED. The Court further DENIES as moot his first motion for
the same (Doc. 1).
Still, Plaintiff has a request. 	Referring to the Court’s order that he provide a revised in
forma pauperis affidavit, Plaintiff asks for a “30-day extension to comply with the Court’s order
or pay the filing fee.” (Doc. 7). He states that because he is paid weekly, he anticipates “having
the necessary funds and/or a clearer financial picture to meet his obligations to the Court within
the next 30 days.” (Id.). Given that Plaintiff already provided the Court with a “clearer financial
picture to meet his obligations” (see Doc. 6), the Undersigned construes this as a request to defer
payment of the filing fee for 30 days. 	The Undersigned RECOMMENDS GRANTING this
request and, if the recommendation that Plaintiff be ordered to pay the filing fee is adopted,
Plaintiff should be given 30 days to do so.
Plaintiff is further ADVISED that should he be ordered to pay the filing fee, it will be his
responsibility to effect service on Defendants.
II. 	Motion for Preservation of Evidence
The Court now turns to Plaintiff’s Motion for Preservation of Evidence. (Doc. 3). Plaintiff
asks that Defendants be ordered to “preserve all evidence relevant to this action.” (Id.). He lists
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several categories of documents and data he believes Defendants control. 	(Id. at 2–3). 	And he
further states that “some of the evidence may be subject to routine deletion or alteration.” (Id. at
2). He claims that a preservation order is necessary to prevent spoliation. (Id. at 4).
Generally, “preservation orders are unnecessary because parties to civil litigation have ‘a
duty to preserve relevant information, including ESI[.]’” Swetlic Chiropractic & Rehab. Ctr., Inc.
v. Foot Levelers, Inc., No. 2:16-CV-236, 2016 WL 1657922, at *2 (S.D. Ohio Apr. 27, 2016)
(citing John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008)). 	This Court has noted that
“preservation orders ‘must be premised on a demonstration that a real danger of evidence
destruction exists, a lack of any other available remedy, and a showing that the preservation order
is an appropriate exercise of the court’s discretion.’” 	Id. (citing John B., 531 F.3d at 459).
Importantly, the Sixth Circuit cautions that orders to preserve information “should be employed in
a very limited set of circumstances.” John B., 531 F.3d 448, 459.
Here, Plaintiff has not addressed any of the other relevant considerations. 	His vague
comment “some of the evidence may be subject to routine deletion or alteration,” does not show
there is a “real danger” of evidence destruction. Consequently, the Court finds that this is not one
of the rare circumstances that requires a preservation order. 	His Motion for Preservation of
Evidence (Doc. 3) is DENIED without prejudice.
III. 	CONCLUSION
For the foregoing reasons, the Undersigned RECOMMENDS that Plaintiff’s second
Motion for Leave to Proceed in forma pauperis be DENIED (Doc. 6), and his Motion for
Extension of Time be GRANTED (Doc 7). Additionally, the Court DENIES as moot Plaintiff’s
first Motion for Leave to Proceed in forma pauperis (Doc. 1), and DENIES without prejudice
his Motion for Preservation of Evidence (Doc. 3).
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IT IS SO ORDERED.
Date: January 13, 2026 	/s/Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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). 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 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 [the 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
the 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).
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