Kimsey v. Astrue

Filing 4

ORDER GRANTING 3 MOTION for Leave to Proceed in forma pauperis filed by Gary M. Kimsey. Signed by Judge G. Patrick Murphy on 8/4/2009. (ssd)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS GARY M. KIMSEY, ) ) Plaintiff, ) ) vs. ) ) MICHAEL J. ASTRUE, Commissioner of ) Social Security, ) ) Defendant. )

CIVIL NO. 09-554-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge: This matter is before the Court on Plaintiff's application to proceed in forma pauperis (Doc. 3). On July 23, 2009, Plaintiff filed this civil complaint pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision by Defendant to deny Plaintiff's claim for disability and supplemental security income benefits (Doc. 1). Plaintiff is proceeding pro se. A federal court is authorized under 28 U.S.C. § 1915(a)(1) to permit an indigent party to proceed in a civil action without prepaying the filing fee if two conditions are met: (1) the petitioner is indigent and (2) the action is neither frivolous nor malicious. See, e.g., Smith-Bey v. Hospital Adm'r, 841 F.2d 751, 757-58 (7th Cir. 1981); Free v. United States, 879 F.2d 1535 (7th Cir. 1989). Under Local Rule of the United States District Court for the Southern District of Illinois 3.1(b), any person seeking leave to proceed in forma pauperis under 28 U.S.C. § 1915 shall submit an affidavit of poverty which shall conform, as nearly as possible and as applicable, with the form affidavit used pursuant to 28 U.S.C. § 2254. Page 1 of 3

In this case, Plaintiff has submitted a declaration supporting his application. The declaration contains the requisite information and reveals that he is not presently employed; he was last employed in November 1998 earning $7.50 per hour; he has not received money or income from any source in the last 12 months; he has $60.00 in cash or a checking or savings account; and he owns no real estate or valuable personal property. While he does not specifically list any dependents, he states that payment of the $350.00 filing fee would create an "extreme financial hardship on [his] family." The Court finds Plaintiff to be indigent within the meaning of 28 U.S.C. § 1915(a)(1). As an additional matter, the Court has reviewed Plaintiff's complaint and finds that, at this time, the action does not appear to be frivolous or malicious. See Jones v. Morris, 777 F.2d 1277, 1279-80 (7th Cir. 1985) (holding that a complaint is deemed frivolous only if a petitioner can make no rational argument in law or facts to support his claim for relief). For the foregoing reasons, Plaintiff's motion for leave to proceed in forma pauperis (Doc. 3) is GRANTED as to this Court only. The Clerk of Court is DIRECTED to provide Plaintiff with a blank form of summons and three blank forms USM-285. Plaintiff is ORDERED to complete the form of summons and return it to the Clerk of Court. The Clerk of Court SHALL issue the completed summons. Unless service is waived pursuant to Federal Rule of Civil Procedure 4(d), the United States Marshal SHALL, in accordance with Rule 4(i), (1) personally or by registered or certified mail serve upon Defendant the summons, a copy of the complaint, and a copy of this Memorandum and Order; (2) personally or by registered or certified mail addressed to the process clerk, serve upon the United States Attorney for the Southern District of Illinois copies of the summons, complaint, and this Memorandum and Order; and (3) by registered or certified mail, serve upon the Attorney General of the United States at Washington, D.C., copies of the summons,

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complaint, and this Memorandum and Order. All costs of service shall be advanced by the United States. Plaintiff is responsible for providing all necessary materials, including the appropriate number of USM-285 forms, and any necessary copies to the United States Marshal's Service. In completing the steps set forth above, Plaintiff is ADVISED pursuant to Rule 4(m) that this action will be dismissed without prejudice if service is not effected within 120 days of the date of this Memorandum and Order. It is FURTHER ORDERED that Plaintiff shall serve upon Defendant, or upon Defendant's attorney if appearance has been entered by counsel, a copy of every further pleading or other document submitted for consideration by this Court. Plaintiff shall include with the original paper to be filed with the Clerk of Court a certificate stating the date that a true and correct copy of any document was mailed to Defendant or Defendant's counsel. Any paper received by a District Judge or a Magistrate Judge which has not been filed with the Clerk of Court or which fails to include a certificate of service will be disregarded by the Court. IT IS SO ORDERED. DATED: 08/04/09 s/ ZA ctàÜ|v~ `âÜÑ{ç G. PATRICK MURPHY United States District Judge

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