Dye v. Social Security Administration, Commissioner of

Filing 5

MEMORANDUM AND ORDER sustaining 4 Motion for Leave to Proceed in forma pauperis. The Clerk shall issue summons to the US Marshal or Deputy Marshal, who are appointed pursuant to Fed.R.Civ.P. 4(c)(3). Plaintiff is directed to IMMEDIATELY prepare and submit summon(s) to the Clerk for service. Signed by Chief Judge Kathryn H. Vratil on 11/30/2012. Mailed to pro se party David Dye by regular mail. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DAVID A. DYE,

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Plaintiff,
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v.
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MICHAEL J. ASTRUE, Commissioner of the )
Social Security Administration,
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Defendant.
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CIVIL ACTION
No. 12-1427-KHV

MEMORANDUM AND ORDER
Plaintiff, proceeding pro se, filed this social security appeal on November 16, 2012. This
matter comes before the Court on plaintiff’s Motion To Proceed Without Prepayment Of Fees
(Doc. #4) filed November 16, 2012. For reasons set forth below, the Court finds that plaintiff’s
motion should be sustained.
Under 28 U.S.C. § 1915, a district court may authorize commencement of a suit without
prepayment of fees by a person who submits an affidavit that includes a statement of all assets he
possesses and that “the person is unable to pay such fees or give security therefor.” 28 U.S.C.
§1915(a); see Neitzke v. Williams, 490 U.S. 319, 324 (1989) (Section 1915 prevents courts from
denying person opportunity to commence, prosecute or defend action solely because poverty makes
it impossible to pay litigation costs). The district court has discretion whether to grant leave to
proceed in forma pauperis, but it may not act arbitrarily or deny an application on erroneous
grounds. United States v. Garcia, 164 Fed. Appx. 785, 786 n.1 (10th Cir. 2006).
Plaintiff’s affidavit of financial status indicates that he has a total of $84 in cash and in bank
accounts. Over the last year, his average monthly income consisted of $422 in unemployment

benefits and $200 in food stamps. Plaintiff’s reported monthly expenses of $1,266 exceed his
monthly income by $644. He states that he relies on loans from his parents to make up the shortfall.
Plaintiff owns a 2013 Ford Taurus which he purchased with a $27,000 loan from his parents.
Plaintiff has no equity in the car.
To succeed on his motion to proceed in forma pauperis, plaintiff must show a financial
inability to pay the required filing fees. Lister v. Dept. of the Treasury, 408 F.3d 1309, 1312 (10th
Cir. 2005); Cf. Brewer v. City of Overland Park Police Dep’t, 24 Fed. Appx. 977, 979 (10th Cir.
2002) (upholding denial of in forma pauperis status where plaintiff’s income exceeded expenses by
“a few hundred dollars”). Here, it is apparent that plaintiff’s expenses exceed his income by a
substantial amount. On the other hand, the Court notes that plaintiff has borrowed money from his
parents to pay for a new car and for living expenses, and presumably could also borrow $350 to pay
the filing fee. Given the (admittedly scant) case law on this issue, however, the Court declines to
require plaintiff to obtain a loan to pay the filing fee. See Hines v. U.S. Att’y Gen., 857 F.2d 1469
(Table), 1988 WL 92898, at *2 (4th Cir. 1988) (district court abused discretion in denying plaintiff
in forma pauperis status; court should not require plaintiff to obtain loan for filing fees where
monthly income stream consumed by reasonable monthly living expenses). The Court finds that
plaintiff’s income and assets demonstrate financial inability to pay the filing fee.
IT IS THEREFORE ORDERED that plaintiff’s Motion To Proceed Without Prepayment
Of Fees (Doc. #4) filed November 16, 2012, be and hereby is SUSTAINED.
IT IS FURTHER ORDERED that the Clerk shall issue summons to the United States
Marshal, who is appointed pursuant to Fed. R. Civ. P. 4(c)(3). Plaintiff is directed to prepare and
submit summons to the Clerk for service IMMEDIATELY.

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Dated this 30th day of November, 2012 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

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