Dilworth v. Commissioner of Social Security

Filing 4

ORDER requiring submission of supplemental information for filing with the Clerk. Signed by Magistrate Judge Jane M. Virden on 6/22/18. (ncb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
ERIC DILWORTH

PLAINTIFF

V.

NO. 1:18CV119-SA--JMV

COMMISSIONER OF SOCIAL SECURITY

DEFENDANT

ORDER
Before the court are Eric Dilworth’s pro se complaint [1] and Motion [2] to proceed in
forma pauperis (“IFP”) in this action. For the reasons set out below, this case will not be
allowed to proceed unless and until Mr. Dilworth provides more information.
First, with regard to the pro se complaint, Mr. Dilworth has submitted a form complaint
for review of a decision of the Commissioner of Social Security. The form specifically required
Mr. Dilworth—under section two, “Basis for Jurisdiction”—to attach a copy of the
Commissioner’s final decision and a copy of the notice of the Appeals Council’s denial of his
appeal.
The Social Security Act provides for district court review of the final decision of the
Commissioner. Title 42 U.S.C. § 405(g) provides, in pertinent part that:
Any individual, after any final decision of the Secretary made after a hearing to
which he was a party, irrespective of the amount in controversy, 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
Secretary may allow.
42 U.S.C. § 405(g) (emphasis added). A Social Security claimant must exhaust administrative
remedies before seeking review in federal court. Sims v. Apfel, 530 U.S. 103, 107 (2000); see
also 20 C.F.R. §§ 404.900(a)(5), (b), 416.1400(a)(5), (b). Ultimately, a district court does not
have jurisdiction to review the Commissioner's final decision unless the claimant has exhausted

his administrative remedies. See Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994).
Furthermore, a claimant has sixty days from the date he receives notice of the Appeals
Council’s decision denying a request for review to file an action in federal court, or the action
may be deemed time-barred.
Here, review of a copy of the adverse decision and a copy of the notice of the Appeals
Council’s decision is essential for this Court’s determination of whether it has jurisdiction over
the case and whether Mr. Dilworth may proceed with his case.
Second, with regard to the IFP motion, it is a one paragraph motion wherein Mr.
Dilworth essentially states he is unable to pay the filing fee and requests leave to proceed IFP.
A district court may authorize the commencement of an action without the payment of the filing
fee by persons who submit an affidavit that they are “unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a)(1). The court must examine the financial condition of the
applicant[s] in order to determine whether payment of fees would “cause [an] undue financial
hardship.” Prows v. Kastner, 842 F.2d 138, 140 (5th Cir. 1988). It is appropriate for the Court
to consider a spouse’s income in making a determination regarding the claimant’s financial
ability to pay the filing fee. See Bruton v. Colvin, No. 4:14cv83-A, 2014 WL 840993, at *1
(N.D. Tex. March 4, 2014). See also Dixon v. Colvin, No. 3:15-cv-263-B-BN, 2015 WL
899019, at * 2 (N.D. Tex. March 3, 2015) (quoting Williams v. Spencer, 455 F.Supp. 205, 209
(D.Md. 1978) (“[Whether the litigant is ‘unable to pay’ the costs [associated with initiating a
lawsuit, moreover,] . . . depend[s] in part on [the] litigant’s actual ability to get funds from a
spouse, a parent, an adult sibling, or other next friend.”). Based on this authority, Mr. Dilworth
must submit information regarding his financial situation.
Finally, all of the requested information must be provided in order for this Court to
determine whether it has jurisdiction over this case and whether Mr. Dilworth may proceed IFP.

Accordingly, it is ORDERED:
That within fourteen (14) days of this date, Mr. Dilworth must supplement his complaint
and IFP motion, respectively, by providing to the Clerk a copy of the adverse decision of which
he complains, the Appeals Council’s notice, and a completed copy of the attached IFP affidavit
form. Mr. Dilworth is warned that failure to fully comply with this order may lead to dismissal
of this case.
THIS 22nd day of June, 2018.

/s/ Jane M. Virden
U.S. MAGISTRATE JUDGE

AO 240 (Rev. 07/10) Application to Proceed in District Court Without Prepaying Fees or Costs (Short Form)

UNITED STATES DISTRICT COURT
for the
Northern District of Mississippi
__________ District of __________
)
)
)
)
)

Plaintiff/Petitioner
v.
Defendant/Respondent

Civil Action No.

APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS
(Short Form)
I am a plaintiff or petitioner in this case and declare that I am unable to pay the costs of these proceedings and
that I am entitled to the relief requested.
In support of this application, I answer the following questions under penalty of perjury:
1. If incarcerated. I am being held at:
.
If employed there, or have an account in the institution, I have attached to this document a statement certified by the
appropriate institutional officer showing all receipts, expenditures, and balances during the last six months for any
institutional account in my name. I am also submitting a similar statement from any other institution where I was
incarcerated during the last six months.
2. If not incarcerated. If I am employed, my employer’s name and address are:

My gross pay or wages are: $
(specify pay period)

, and my take-home pay or wages are: $

per

.

3. Other Income. In the past 12 months, I have received income from the following sources (check all that apply):
(a) Business, profession, or other self-employment
(b) Rent payments, interest, or dividends
(c) Pension, annuity, or life insurance payments
(d) Disability, or worker’s compensation payments
(e) Gifts, or inheritances
(f) Any other sources

’
’
’
’
’
’

Yes
Yes
Yes
Yes
Yes
Yes

’
’
’
’
’
’

No
No
No
No
No
No

If you answered “Yes” to any question above, describe below or on separate pages each source of money and
state the amount that you received and what you expect to receive in the future.

AO 240 (Rev. 07/10) Application to Proceed in District Court Without Prepaying Fees or Costs (Short Form)

4. Amount of money that I have in cash or in a checking or savings account: $

.

5. Any automobile, real estate, stock, bond, security, trust, jewelry, art work, or other financial instrument or
thing of value that I own, including any item of value held in someone else’s name (describe the property and its approximate
value):

6. Any housing, transportation, utilities, or loan payments, or other regular monthly expenses (describe and provide
the amount of the monthly expense):

7. Names (or, if under 18, initials only) of all persons who are dependent on me for support, my relationship
with each person, and how much I contribute to their support:

8. Any debts or financial obligations (describe the amounts owed and to whom they are payable):

Declaration: I declare under penalty of perjury that the above information is true and understand that a false
statement may result in a dismissal of my claims.

Date:
Applicant’s signature

Printed name

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