Konstantinovich v. Department of Health and Human Services et al

Filing 8

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that pltff.'s mtn. to proceed ifp is granted. IT IS FURTHER ORDERED that the clerk shall not issue process or cause process to issue upon the complaint, because the complaint is legally frivolous and/or fails to state a claim upon which relief can be granted. IT IS FURTHER ORDERED that pltff.'s mtn. to appt. counsel is denied as moot. An appropriate order of dismissal shall accompany this memorandum and order. 4 2 Signed by Judge Jean C. Hamilton on 6/27/07. (CLA, )

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Konstantinovich v. Department of Health and Human Services et al Doc. 8 Case 4:07-cv-01139-JCH Document 8 Filed 06/27/2007 Page 1 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION IVAN N. KONSTANTINOVICH, Plaintiff, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants. ) ) ) ) ) ) ) ) ) ) No. 4:07-CV-1139-JCH MEMORANDUM AND ORDER This matter is before the Court upon the application of Ivan N. Konstantinovich for leave to commence this action without Upon the prepayment of the filing fee pursuant to 28 U.S.C. 1915. consideration of the financial information provided with application, the Court finds that the applicant is financially unable to pay any portion of the filing fee. As a result, plaintiff will be granted leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915. 28 U.S.C. 1915(e) Pursuant to 28 U.S.C. 1915(e)(2)(B), the Court may dismiss a complaint filed in forma pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. An action is frivolous if "it lacks an arguable basis Neitzke v. Williams, 490 U.S. 319, 328 in either law or in fact." (1989). An action fails to state a claim upon which relief can be granted if it appears beyond doubt that the plaintiff can prove no Dockets.Justia.com Case 4:07-cv-01139-JCH Document 8 Filed 06/27/2007 Page 2 of 3 set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In reviewing a pro se complaint under 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal The construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). Court must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Complaint and Supplements Liberally construing the complaint, plaintiff is challenging the amount of his Social Security benefits. Plaintiff claims that the amount due and owing to him is $1,014; however, the amount he received was only $909. Plaintiff states that "this matter is in appeal at the Social Security Adm." Because plaintiff has not exhausted his available administrative remedies, a prerequisite to seeking judicial review relative to the payment of social security benefits, the instant action is legally frivolous. See 42 U.S.C. 405(g). Moreover, the Court notes that the proper party-defendant would be Michael J. Astrue, Commissioner of Social Security. See Social Security Independence and Program Improvements Act of 1994, Pub.L.No. 103296, 106(d). 2 Case 4:07-cv-01139-JCH Document 8 Filed 06/27/2007 Page 3 of 3 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint, because the complaint is legally frivolous and/or fails to state a claim upon which relief can be granted. See 28 U.S.C. 1915(e)(2)(B). IT IS FURTHER ORDERED that plaintiff's motion to appoint counsel [Doc. #4] is DENIED as moot. An appropriate order of dismissal shall accompany this Memorandum and Order. Dated this 27th day of June, 2007. /s/Jean C. Hamilton UNITED STATES DISTRICT JUDGE 3

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