Austin v. Commissioner of Social Security
MEMORANDUM AND ORDER, granting 5 MOTION for Leave to Proceed in forma pauperis filed by Steven Dale Austin. Signed by Judge J. Phil Gilbert on 8/9/2017. (jdh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEVEN DALE AUSTIN,
Case No. 17-cv-819 JPG/CJP
COMMISSIONER OF SOCIAL
MEMORANDUM AND ORDER
This matter comes before the Court on the plaintiff’s motion for leave to proceed in forma
pauperis (Doc. 5). A federal court may permit an indigent party to proceed without pre-payment
of fees. 28 U.S.C. § 1915(a)(1). Nevertheless, a court can deny a qualified plaintiff leave to file
in forma pauperis or can dismiss a case if the action is clearly frivolous or malicious. 28 U.S.C. §
1915(e)(2)(B)(i). The test for determining if an action is frivolous or without merit is whether the
plaintiff can make a rational argument on the law or facts in support of the claim. Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Corgain v. Miller, 708 F.2d 1241, 1247 (7th Cir. 1983).
When assessing a motion to proceed in forma pauperis, a district court should inquire into the
merits of the plaintiff’s claims, and if the court finds them to be frivolous, it should deny leave to
proceed in forma pauperis. Lucien v. Roegner, 682 F.2d 625, 626 (7th Cir. 1982).
The Court is satisfied from plaintiff’s affidavit that the plaintiff is indigent. Furthermore,
the Court does not find anything in the file to indicate that this action is frivolous or malicious.
Therefore, the Court GRANTS the motion to proceed in forma pauperis without prepayment of
fees and costs (Doc. 5). The Court notes, however, that should it become apparent that the action
is frivolous or malicious at any time in the future, it may dismiss the case pursuant to 28 U.S.C. §
If the plaintiff wishes the United States Marshals Service to serve process in this case, the
Court DIRECTS the plaintiff to provide to the United States Marshals Service the summons
issued in this case, the appropriately completed USM-285 forms and sufficient copies of the
complaint for service.
The Court further DIRECTS the United States Marshal, upon receipt of the
aforementioned documents from the plaintiff and pursuant to Federal Rule of Civil Procedure
4(c)(3), to serve a copy of the summons, complaint and this order upon the defendant
Commissioner of Social Security, the United States Attorney for the Southern District of Illinois
and the Attorney General of the United States, Washington, D.C., in the manner specified by
Federal Rule of Civil Procedure 4(i)(1) & (2), as directed by the plaintiff. Costs of service shall be
borne by the United States.
IT IS SO ORDERED.
DATED: August 9, 2017
s/J. Phil Gilbert
J. PHIL GILBERT
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