Spring v. Commissioner of Social Security

Filing 4

ORDER granting 3 Motion for Leave to Proceed in forma pauperis. Signed by Chief Judge David R. Herndon on 4/4/2013. (kar)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DUANE R. SPRING,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

No. 13-236-DRH-CJP
MEMORANDUM AND ORDER

HERNDON, Chief Judge:
On March 12, 2013, plaintiff Duane Spring filed suit against the
Commissioner of Social Security under 42 U.S.C. 405(g). (Doc. 2). Now before
the Court is plaintiff’s motion for leave to proceed in forma pauperis (IFP), i.e.,
without prepaying fees or costs (Doc. 3).

Based on the following, the Court

GRANTS Spring’s motion to proceed without prepaying fees or costs.
Under 28 U.S.C. 1915(a)(1), a federal district court may allow a civil case to
proceed without prepayment of fees, if the movant “submits an affidavit that
includes a statement of all assets [he] possesses [showing] that the person is
unable to pay such fees or give security therefor.” Plaintiff has done so in the
instant case. But the Court’s inquiry does not end there. 28 U.S.C. § 1915(e)(2)
requires careful threshold scrutiny of the complaint filed by an IFP plaintiff.
Indeed, the statute requires the Court to dismiss the complaint at any time if (a)
the allegation of poverty is untrue, (b) the action is frivolous or malicious, (c) the

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action fails to state a claim upon which relief can be granted, or (d) the action
seeks monetary relief against a defendant who is immune from such relief. Id.
An action or claim is frivolous if “it lacks an arguable basis either in law or
in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a
claim upon which relief can be granted if it does not plead “enough facts to state a
claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). Conversely, a complaint is plausible on its face “when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual
allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some
factual allegations may be so sketchy or implausible that they fail to provide
sufficient notice of a plaintiff’s claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir.
2009). Additionally, Courts “should not accept as adequate abstract recitations of
the elements of a cause of action or conclusory legal statements.” Id. At the same
time, however, the factual allegations of a pro se complaint are to be liberally
construed.

See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821

(7th Cir. 2009).
Plaintiff’s complaint survives § 1915 review.

His sworn IFP motion

establishes that he is indigent for purposes of IFP review. Nothing indicates that
his action is frivolous or malicious. It does not appear the named defendants are
immune from relief at this point. And at this point, the Court cannot conclude

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that this action fails to state any claim upon which relief could be granted.

This

does not mean the Court finds that Spring’s claims have merit or should prevail.
Accordingly, the Court GRANTS Spring’s motion for IFP status (Doc. 2).
Finally, IT IS HEREBY ORDERED that the Clerk of the Court shall
prepare for defendant Commissioner of Social Security: (1) Form 5 (Notice of a
Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of
Service of Summons). If a defendant fails to sign and return the Waiver of Service
of Summons (Form 6) to the Clerk within 30 days from the date the forms were
sent, the Clerk shall take appropriate steps to effect formal service on that
defendant, and the Court will require that defendant pay the full costs of formal
service, to the extent authorized by the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that, with respect to a defendant who no
longer can be found at the work address provided by plaintiff, the employer shall
furnish the Clerk with the defendant’s current work address, or, if not known, the
defendant’s last-known address. This information shall be used only for sending
the forms as directed above or for formally effecting service. Any documentation
of the address shall be retained only by the Clerk. Address information shall not
be maintained in the court file or disclosed by the Clerk.
IT IS FURTHER ORDERED that plaintiff shall serve upon defendants (or
upon defense counsel once an appearance is entered), a copy of every pleading or
other document submitted for consideration by the Court. Plaintiff shall include
with the original paper to be filed a certificate stating the date on which a true and

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correct copy of the document was served on defendants or counsel. Any paper
received by a district judge or magistrate judge that has not been filed with the
Clerk or that fails to include a certificate of service will be disregarded by the
Court.
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United
States Magistrate Judge Clifford J. Proud for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate
Judge Clifford J. Proud for disposition, as contemplated by Local Rule 72.2(b)(2)
and 28 U.S.C. § 636(c), should all the parties consent to such a referral.
IT IS FURTHER ORDERED that if judgment is rendered against plaintiff,
and the judgment includes the payment of costs under Section 1915, plaintiff will
be required to pay the full amount of the costs, notwithstanding that his
application to proceed in forma pauperis has been granted. See 28 U.S.C. §
1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C.
§ 1915 for leave to commence this civil action without being required to prepay
fees and costs or give security for the same, the applicant and his or her attorney
were deemed to have entered into a stipulation that the recovery, if any, secured
in the action shall be paid to the Clerk of the Court, who shall pay therefrom all
unpaid costs taxed against plaintiff and remit the balance to plaintiff. Local Rule
3.1(c)(1)

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Finally, Plaintiff is ADVISED that he is under a continuing obligation to
keep the Clerk of Court and each opposing party informed of any change in his
address; the Court will not independently investigate his whereabouts. This shall
be done in writing and not later than 7 days after a transfer or other change in
address occurs.

Failure to comply with this order will cause a delay in the

transmission of court documents and may result in dismissal of this action for
want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
Signed this 4th day of April, 2013.

Digitally signed by
David R. Herndon
Date: 2013.04.04
10:37:00 -05'00'
Chief Judge
United States District Court

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