Kinnett v. State of Ohio et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION (DAYTON)
DUSTIN KINNETT,
Plaintiff,
vs.
THE STATE OF OHIO, et al.,
Defendants.
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Case No. 3:25-cv-00248
District Judge Thomas M. Rose
Magistrate Judge Caroline H. Gentry
REPORT AND RECOMMENDATION
This is the second of two lawsuits filed by Plaintiff Dustin Kinnett that are
currently pending before this Court.1 This case concerns claims of wrongful foreclosure
and fraudulent concealment with respect to Plaintiff’s real estate located at 19411 Pence
Road, among other things. (Doc. No. 1-1.) Plaintiff made similar claims in the now-
closed case of Dustin Kinnett v. The State of Ohio, et al., Case No. 2:24-cv-4172 (S.D.
Ohio).
Plaintiff is proceeding in the case without the assistance of counsel. He also asks
to proceed in forma pauperis (or “IFP”) and without pre-paying the filing costs under 28
U.S.C. § 1915. For the reasons that follow, the undersigned Magistrate Judge
recommends that the Court DENY his Application and ORDER him to pay the fees in
full to proceed.
1 The first pending case is similarly captioned Dustin M. Kinnett v. State of Ohio, et al., Case No. 3:25-cv-
208, and concerns a child custody dispute. (See Doc. No. 26 in Case No. 3:25-cv-208.)
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Under 28 U.S.C. § 1915, “the Court must conduct a satisfactory inquiry into the
plaintiff’s ability to pay the filing fee and prosecute the lawsuit. A plaintiff seeking in
forma pauperis standing must respond fully to the questions on the Court’s in forma
pauperis form[.]” See West v. AFSCME Bldg. Corp., No. 2:22-cv-2235, 2022 WL
18142399, at *1 (W.D. Tenn. Apr. 14, 2022).
Here, Plaintiff has not answered all the questions in the IFP Application. (See Doc.
No. 1 at PageID 2 [Question IV – no answer to the question of how much money Plaintiff
received from all sources over the last twelve months].) Some of his answers appear to
conflict with each other. (See id. at PageID 2-3 [compare Question III – Plaintiff states he
has no dependents with Question VII – Plaintiff states he pays child support] [also
compare Question I with Question VII – Plaintiff states he makes around only $400 per
month but says he pays monthly expenses that exceed that amount].) And some answers
appear to conflict with answers provided in his other pending case. (Compare Doc. No. 1
[Question V] with Doc Nos. 9, 29 in Case No. 3:25-cv-208 [Question V] – giving
different estimated values of the real estate at issue here].)
“Proceeding in forma pauperis is a privilege and not a right.” Ohio v. Ealy, No.
1:09-cv-245, 2009 WL 1118704, at *1 (S.D. Ohio Apr. 24, 2009) (citing Wilson v.
Yaklich, 148 F.3d 596, 603 (6th Cir. 1998)). A litigant need not be absolutely destitute to
be granted leave to proceed in forma pauperis. See Adkins v. E.I. DuPont de Nemours &
Co., 335 U.S. 331, 339 (1948). “But a litigant does have an obligation of truthfulness in
his filings in this Court, as well as a burden to demonstrate he should be granted in forma
pauperis status.” Givens v. Shadyside Police Dep’t, No. 2:22-cv-4268, 2023 WL
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3089066, at *5 (S.D. Ohio Apr. 26, 2023), report and recommendation adopted, 2023
WL 3868394 (S.D. Ohio June 7, 2023) (citing Fed. R. Civ. P. 11 and West, 2022 WL
18142399, at *1).
Here, Plaintiff has not fully answered the questions on the IFP Application and has
not met his burden to show he should be granted IFP status. Given the discrepancies, the
undersigned is also unconvinced that he has fully disclosed his financial status. It is
unclear how Plaintiff supports himself or his dependent(s). It is unclear how much money
he makes, and what his monthly expenses truly are. Ultimately, the undersigned cannot
conclude from Application that Plaintiff’s poverty prevents him from paying $405 in this
case while still providing for the necessities of life. See Adkins, 335 U.S. at 339.
These are the same reasons that this Court denied Plaintiff’s application to proceed
IFP in his now-closed case. See Kinnett v. State of Ohio, No. 2:24-cv-4172, 2024 U.S.
Dist. LEXIS 227905, at *1-3 (S.D. Ohio Dec. 17, 2024) (Jolson, M.J.), report and
recommendation adopted, 2025 U.S. Dist. LEXIS 15816, at *1 (S.D. Ohio Jan. 29, 2025)
(Morrison, C.J.). When he re-filed his “fraudulent foreclosure” claims in this case, he had
already been advised that the Court required “more specificity” in his answers. Id. These
are also the same reasons that the undersigned has recommended that the Court deny
Plaintiff’s IFP Applications in his related pending case. (See Report & Recommendation,
Doc. No. 30 in Case No 3:25-cv-208, incorporated herein by reference.)
The undersigned therefore RECOMMENDS that the Court DENY Plaintiff’s IFP
Application (Doc. No. 1) and ORDER him to pay $405 (the $350 filing fee plus a $55
administrative fee) in full within thirty days if he wants to proceed with this case.
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Plaintiff may object to this recommendation as detailed in the section below. In the
alternative, Plaintiff may pay $405 to the Clerk of this Court. Plaintiff is reminded that he
must keep the Court informed of his current mailing address while this case is pending.
IT IS SO RECOMMENDED.
s/ Caroline H. Gentry
Caroline H. Gentry
United States Magistrate Judge
Notice Regarding Objections to this Report and Recommendations
If any party objects to this Report and Recommendations (“R&R”), the party may
serve and file specific, written objections to it within fourteen (14) days after being
served with a copy thereof. Fed. R. Civ. P. 72(b). 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. The Court may extend the fourteen-day objections period if a
timely motion for an extension of time is filed.
A District Judge of this Court will make a de novo determination of those portions
of the R&R to which objection is made. Upon proper objection, 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 R&R will result in
a waiver of the right to have the District Judge review the R&R de novo, and will also
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operate as a waiver of the right to appeal the decision of the District Court adopting the
R&R. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947
(6th Cir. 1981).
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