Brogue v. Social Security, Commissioner of, No. 2:2012cv14220 - Document 10 (E.D. Mich. 2012)
Court Description: AMENDED OPINION and ORDER Adopting 6 Report and Recommendation; denying Objections 8 Motion filed by Genre Brogue; Denying 5 Application to Proceed In Forma Pauperis and Plaintiff must pay filing fee by January 11, 2013 or case will be dismissed. Signed by District Judge Paul D. Borman. (SSch)
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION GENRE BROGUE, Plaintiff, Case No. 12-cv-14220 Paul D. Bonnan United States District Judge v. MICHAEL ASTRUE, Defendant. - - - - - - - - - -1 AMENDED] OPINION AND ORDER (1) DENYING PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE JUDGE'S DENIAL OF IN FORMA PAUPERIS STATUS (ECF NO.8); (2) ADOPTING MAGISTRATE JUDGE GRAND'S OCTOBER 25,2012 REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS (ECF NO.6); and (3) DENYING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS (ECF NO.5) This matter is before the Court on Plaintiffs Objections (ECF No.8) to Magistrate Judge Grand's October 25, 2012 Report and Recommendation to Deny Plaintiff s Application to Proceed In Forma Pauperis (ECF No.6). Having conducted a de novo review ofthe parts ofthe Magistrate Judge's Report and Recommendation to which objections have been filed pursuant to 28 U.S.C. § 636(b)(l), the Court DENIES Plaintiffs Objections, ADOPTS the Magistrate Judge's Report and Recommendation, DENIES Plaintiffs Application to Proceed In Forma Pauperis. 1 The Court's Original Order, entered on 12/12/12, was docketed without page 4. This Amended Order includes page 4 and also grants Plaintiff an additional two weeks, until January 11,2013, to pay the filing fee with a valid fonn of payment or face dismissal of her case. I. BACKGROUND Plaintiff filed the instant action against the Commissioner of Social Security on September 24,2012. (ECF No.1, Petition for Judicial Review of the Commissioner of Social Security.) On its filing, this Social Security case was referred to Magistrate Judge David R. Grand. (ECF No.2, Clerk's Notice of Reference.) Plaintiff did not accompany her filing with the requisite filing fee. Accordingly, on October 9,2012, Magistrate Judge Grand issued an order directing Plaintiff to pay the filing fee or file an application to proceed in forma pauperis. (ECF No.4.) On October 16, 2012, Plaintiff filed an Application to Proceed In Forma Pauperis. (ECF No.5.) Plaintiffs Application indicated that Plaintiff is employed (semi-retired), that she received money of an undisclosed amount in the past 12 months in the form ofgifts and inheritances and from other sources, that she receives $698 per month in social security payments, that she has money of an undisclosed amount in both a checking and a savings account and that she has no dependents. (ECFNo.5.) On October 25, 2012, Magistrate Judge Grand issued a Report and Recommendation to deny Plaintiff pauper status because her Application failed to show that Plaintiff actually lacked funds to pay the fee and therefore her Application was insufficient to demonstrate poverty. (ECF No.6, Report 2.) Plaintiffthen filed the instant Objections (improperly styled as a motion) challenging the Magistrate Judge's denial of her Application to proceed without prepayment ofthe filing fee. (ECF No.8.) II. STANDARD OF REVIEW A district court judge reviews de novo the portions of the report and recommendation to which objections have been filed. 28 U .S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). A district "court 2 may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. Objections must be timely to be considered. A party who receives notice of the need to timely object yet fails to do so is deemed to waive review of the district court's order adopting the magistrate judge's recommendations. Mattox v. City ofForest Park, 183 F.3d 515, 519-20 (6th Cir.1999). "[A] party must file timely objections with the district court to avoid waiving appellate review." Smith v. Detroit Federation ofTeachers Local 231 ,829 F.2d 1370, 1373 (6th Cir. 1987) (emphasis in original). Only those objections that are specific are entitled to a de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir.l986). "The parties have the duty to pinpoint those portions of the magistrate's report that the district court must specially consider." Id. (internal quotation marks and citation omitted). A general objection, or one that merely restates the arguments previously presented, does not sufficiently identify alleged errors on the part of the magistrate judge. An "objection" that does nothing more than disagree with a magistrate judge's determination, "without explaining the source of the error," is not considered a valid objection. Howardv. Sec'y ofHealth and Human Servs., 932 F.2d 505,509 (6th Cir.1991). Specific objections enable the Court to focus on the particular issues in contention. Howard, 932 F.2d at 509. Without specific objections, "[t]he functions of the district court are effectively duplicated as both the magistrate and the district court perform identical tasks. This duplication of time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes of the Magistrate's Act." Id. '''[O]bjections disput[ing] the correctness of the magistrate's recommendation but faiI[ing] to specify the findings [the objector] believed were in error" are too summary in nature. Miller v. Currie, 50 F.3d 373,380 (6th Cir. 1995)). 3 III. ANALYSIS Plaintiffs Objection, like her Application, does not address the fundamental failing of her request to proceed in this Court without prepayment ofthe filing fee, i.e her failure even to claim that she is indigent and therefore unable to pay the fee required to proceed in this Court. Plaintiff does not address at all in her Objection the Magistrate Judge's conclusion that Plaintiff has never adequately demonstrated that she lacks the funds to pay the filing fee. Indeed Plaintiff indicates on her Application that she has income and maintains both a checking and a savings account (the amounts of which remain undisclosed) and reiterates in her Objection that she actually attempted to pay the filing fee, apparently with a non-negotiable instrument. (ECF No.8, Objection 1.) She suggests, without elaboration or explanation, that the her "acct. materials are probably in Jdg. B.A. Friedman's chambers." Id. As the Magistrate Judge noted in his Report and Recommendation, this is not the first time that this Plaintiff has been denied in forma pauperis status in this Court. In Brogue v. Fort Knox Federal Credit Union, No. 96-1896, 1996 WL 242032 (6th Cir. May 8, 1997), the Sixth Circuit affirmed Judge Friedman's denial of Plaintiffs application to proceed in forma pauperis because there, as here, she indicated that she was employed, that she maintained bank accounts and that she had other sources of income. Id. at *1. There, as here, Plaintiff failed to explain her "inability to obtain the required filing fees from either [her] income or [her] bank account.,,2 Id. The Court concludes that Magistrate Judge Grand correctly found that Plaintiffs statements indicating that she had income and assets but was unable to disclose the amounts due to "acct. For reasons that are unclear, the Sixth Circuit opinion refers to Plaintiff as a male. It appears to this Court that Plaintiff is a female. See ECF No.1 Petition, p. 3 (copy of Plaintiff's United States Passport, indicating Plaintiff s sex as female). 2 4 materials being stolen from [herJ mail deliveries," were insufficient to demonstrate poverty as required to proceed in this Court without prepayment of fees. Moreover, Plaintiff has not specifically objected to the Magistrate Judge's conclusion regarding her failure to sufficiently allege indigence but rather has generally objected to the Magistrate Judge's denial of her application on grounds unrelated to his ruling. "'[O]bjections disput[ing] the correctness of the magistrate's recommendation but fail[ingJ to specify the findings [the objector] believed were in error" are too summary in nature. Miller v. Currie, 50 F.3d 373,380 (6th Cir. 1995)). IV. CONCLUSION For the foregoing reasons, and having conducted a de novo review of Plaintiffs Application to Proceed In Forma Pauperis, the Court DENIES Plaintiff s Objections (ECF No.8), ADOPTS the Magistrate Judge's Report and Recommendation (ECF No.6) and DENIES Plaintiffs Application to Proceed In Forma Pauperis (ECF No.5). Plaintiff must pay the filing fee with a valid form of payment on or before January 11, 2013 or the case shall be dismissed. IT IS SO ORDERED. United States District Judge Dated: DEC 28 2012 5
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