Shafer v. Commissioner of Social Security
Filing
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OPINION AND ORDER denying 2 First MOTION for Leave to Proceed in forma pauperis and GRANTS Plaintiff, Terry James Shafer, until 11/3/2014, to pay the $400.00 filing fee. Signed by Judge Rudy Lozano on 10/3/2014. (rmc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TERRY JAMES SHAFER,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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NO. 3:14-CV-1785
OPINION AND ORDER
This matter is before the Court on the Complaint (DE #1) and
the Application to Proceed in District Court Without Prepaying Fees
or Costs (DE #2), both filed by Plaintiff, Terry James Shafer, on
August 12, 2014.
For the reasons set forth below, the Court:
(1) DENIES the Application to Proceed in District Court
Without Prepaying Fees or Costs (DE #2);
(3) GRANTS Plaintiff, Terry James Shafer, until November 3,
2014, to pay the $400.00 filing fee; and
(3) CAUTIONS Plaintiff, Terry James Shafer, that if he does
not respond by that date, this case will be dismissed without
further notice for non-payment of the filing fee.
BACKGROUND
Plaintiff, Terry James Shafer (“Shafer”), initiated this case
by filing a complaint pursuant to 42 U.S.C. section 405(g) on
August 12, 2014.
(DE #1.)
That same day, Shafer also filed his
application seeking to proceed in forma pauperis (“IFP”). (DE #2.)
In his complaint, Shafer states that his application for social
security disability benefits was denied by the Appeals Council; he
has attached the Appeals Council Notice, dated May 15, 2014, to the
complaint.
(Id. at 4-7.)
The complaint also states that, “[o]n
July 13, 2014, a request for an extension to file in federal court
was made to the Appeals Council. . . .
pending.”
(Id. at 1.)
This request is still
Shafer has attached the letter requesting
an extension from the Appeals Council to the complaint as well as
fax coversheets showing that he faxed the letter to the Appeals
Council on July 14, 2014.
(Id. at 9-11.)
The complaint states
that Shafer is disabled and that the “conclusions and findings of
fact of the Defendant are not supported by substantial evidence and
are contrary to law and regulation.”
(Id. at 1-2.)
In his IFP
application, Shafer states that he is not employed but receives
income of $1,758 from VA disability payments.
(DE #2, p.1.)
He
states that he has $2,500 in a checking account and owns a vehicle
valued at $8,000.
(Id. at 2.)
He lists expenses totaling $1,204.
(Id.)
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ANALYSIS
The IFP statute, 28 U.S.C. section 1915, allows an indigent
plaintiff
to
commence
a
civil
action
without
prepaying
administrative costs (e.g. filing fee) of the lawsuit.
the
See 28
U.S.C. § 1915(a)(1); see also Denton v. Hernandez, 504 U.S. 25, 27
(1992). When presented with an IFP application, the district court
makes two determinations: (1) whether the suit has sufficient
merit; and (2) whether the plaintiff’s poverty level justifies IFP
status.
See Denton, 504 U.S. at 27; Smith-Bey v. Hosp. Adm’r, 841
F.2d 751, 757 (7th Cir. 1988).
The screening court must deny the
IFP application and dismiss the complaint if (a) the allegation of
poverty is untrue, (b) the action is frivolous or malicious, (c)
the 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.
28 U.S.C. § 1915(e)(2).
An action is frivolous if “it lacks an arguable basis either
in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
A claim that “no reasonable person could suppose to have any merit”
is considered frivolous.
Cir. 2000).
Lee v. Clinton, 209 F.3d 1025, 1026 (7th
Additionally, when a valid affirmative defense is
clear and unmistakable from the face of a complaint, the screening
court
may
dismiss
defendant to answer.
the
suit
as
frivolous
before
requiring
a
Walker v. Thompson, 288 F.3d 1005, 1009-10
(7th Cir. 2002).
Federal civil actions brought to review a final decision of
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the Commissioner in Social Security cases are subject to a sixty
(60) day statute of limitations.
See 42 U.S.C. § 405(g) (“Any
individual, after any final decision of the Commissioner . . . to
which he was a party . . . may obtain a review of such decision by
a civil action commenced within sixty days after the mailing to him
of notice of such decision or within such further time as the
Commissioner . . . may allow.”); see also Bowen v. City of New
York, 476 U.S. 467, 479-81 (1986).
Regulations provide that “the
date of receipt of notice of denial of request for review . . .
shall be presumed to be 5 days after the date of such notice,
unless there is a reasonable showing to the contrary.”
§ 422.210(c).
20 C.F.R.
A party may seek an extension of time to file an
action in Federal court, but that written request must be filed
with and granted by the Appeals Council first in order to validly
extend the deadline.
See 20 C.F.R. § 404.982.1
In certain rare
circumstances, equitable tolling can excuse a late filing but only
when the plaintiff can show: “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance
stood in his way.”
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).2
1
The time period will only be extended by the Appeals Council if good
cause to do so has been shown by the plaintiff. See 20 C.F.R. § 404.911.
2
For example, the Supreme Court has stated that equitable tolling may
be appropriate “where the claimant has actively pursued his judicial remedies
by filing a defective pleading during the statutory period, or where the
complainant has been induced or tricked by his adversary’s misconduct into
allowing the filing deadline to pass” but not in situations where “the
claimant failed to exercise due diligence in preserving his legal rights.”
Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (1990) (internal footnotes and
citations omitted).
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Here, as to the financial prong, Shafer indicates that he has
no dependents and an income from VA disability payments of $1,758
per month.
The annualized value of that income stream is $21,096.
The poverty guideline for a family of one living in Indiana is
$11,670 per year.
HHS Poverty Guidelines, 79 Fed. Reg. 3593
(January 22, 2014). Shafer’s income is significantly more than the
poverty level.
Therefore the IFP application will be DENIED, and
he will be required to pay the filing fee before proceeding with
this lawsuit.
Additionally, the Court notes that it is not clear whether the
complaint has been timely filed.
Because the Appeals Council
Notice is dated May 15, 2014, Shafer had until July 21, 2014,3 to
file his complaint in federal court.
12, 2014.
He did not do so until August
Therefore, it appears that his complaint is untimely
unless the Appeals Council has agreed to extend the deadline for
filing.
Shafer has indicated that the request for an extension is
still “pending.”
While this Court is without authority to proceed
unless or until the request has been approved, it is not clear and
unmistakable from the face of the complaint that the action is
untimely (i.e. the status of the request may have since changed).
Therefore, the Court declines to dismiss the action as frivolous at
this time.
3
Date of receipt of the notice is presumed to have been May 20, 2014.
Sixty days after that date was July 19, 2014; however, as that date fell on a
Saturday, filing was required by the next business day of July 21, 2014.
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CONCLUSION
For the reasons set forth above, the Court:
(1) DENIES the Application to Proceed in District Court
Without Prepaying Fees or Costs (DE #2);
(3) GRANTS Plaintiff, Terry James Shafer, until November 3,
2014, to pay the $400.00 filing fee; and
(3) CAUTIONS Plaintiff, Terry James Shafer, that if he does
not respond by that date, this case will be dismissed without
further notice for non-payment of the filing fee.
DATED: October 3, 2014
/S/RUDY LOZANO, Judge
United States District Court
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