Emerine v. Ward et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KEVIN MICHAEL EMERINE,
Plaintiff,
v.
CO JIMMY WARD, et al.,
Defendants.
Civil Action 2:25-cv-1270
Chief Judge Sarah D. Morrison
Magistrate Judge Chelsey M. Vascura
REPORT AND RECOMMENDATION
This matter is before the Court for consideration of Plaintiff’s Motion for Leave to
Proceed in forma pauperis. (ECF No. 1.) For the reasons that follow, it is RECOMMENDED
that Plaintiff’s Motion be DENIED.
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.
The United States Supreme Court, in Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331,
(1948), set forth the legal standards governing applications to proceed in forma pauperis. The
Adkins Court advised that “one must [not] be absolutely destitute to enjoy the benefit of the
statute” and that the statute does not require an individual to “contribute . . . the last dollar they
have or can get.” Id. at 339. The Court explained that “[t]he public would not be profited if
relieved of paying costs of a particular litigation only to have imposed on it the expense of
supporting the person thereby made an object of public support.” Id. Rather, what is required is a
demonstration via affidavit that “because of his [or her] poverty,” the applicant cannot pay the
Case: 2:25-cv-01270-SDM-CMV Doc #: 2 Filed: 11/25/25 Page: 1 of 3 PAGEID #: <pageID>

2
fee and continue to provide for the necessities of life. Id. Courts evaluating applications to
proceed in forma pauperis generally consider an applicant’s employment, annual income and
expenses, and any other property or assets the individual possesses. Giles v. Comm’r of Soc.
Sec., No. 14-CV-11553, 2014 WL 2217136, at *1 (E.D. Mich. May 29, 2014) (citing Cognetto v.
Comm’r of Soc. Sec., 2014WL 358465, at *1 (E.D. Mich. Jan. 31, 2014)).
Here, the information set forth in Plaintiff’s in forma pauperis affidavit does not
demonstrate his inability to pay the Court’s filing fee. The application indicates that Plaintiff
receives monthly employment income of $3,200 and has monthly expenses totaling $1,830,
leaving $1370 in monthly discretionary income. Plaintiff lists additional creditors to whom he
owes a total of $8,700, but Plaintiff fails to specify the monthly amount he pays toward such
obligations. Plaintiff also avers that he has $125 in cash on hand and real estate assets worth
$40,000.
In view of Plaintiff’s monthly discretionary income and real estate assets, the
undersigned finds that Plaintiff has not demonstrated that, because of his poverty, he is unable to
pay for the costs of this litigation and still provide for himself. It is therefore
RECOMMENDED that Plaintiff’s Motion for Leave to Proceed in forma pauperis be DENIED
and that he be ordered to pay the required $405.00 filing fee within FOURTEEN (14) DAYS if
he intends to proceed.
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 District Judge of this Court shall make a de novo
Case: 2:25-cv-01270-SDM-CMV Doc #: 2 Filed: 11/25/25 Page: 2 of 3 PAGEID #: <pageID>

3
determination of those portions of the Report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a District 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).
/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE
Case: 2:25-cv-01270-SDM-CMV Doc #: 2 Filed: 11/25/25 Page: 3 of 3 PAGEID #: <pageID>