Wolfe v. Commissioner of Social Security

Filing 3

ORDER GRANTING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS granting 2 Motion for Leave to Proceed in forma pauperis. Clerk to issue 60 day summons and USM285 for service by USMS. Signed by Magistrate Judge James E. Seibert on 1/22/2014. Copy transmitted by email to counsel of record.(cwm) Modified on 1/22/2014 copy to USMS for service of summons (cwm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CAROL JEAN WOLFE,
Plaintiff,
v.

Civil Action No.: 3:14-cv-04

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
ORDER GRANTING PLAINTIFF’S APPLICATION TO
PROCEED IN FORMA PAUPERIS
On January 8, 2014, Carol Jean Wolfe, filed a complaint under 42 U.S.C. § 405(g) and 42
U.S.C. § 1383(c)(3), and an Application for Leave to Proceed in forma pauperis.1 Plaintiff’s
application reveals that she is currently unemployed and that her only source of income is $16 per
month in food stamps. Plaintiff’s spouse receives $1500 per month in disability payments. Plaintiff
and her spouse have $36 cash on hand and $113.37 in a bank account. Additionally, Plaintiff and
her spouse own two motor vehicles worth a total of approximately $2000 and two motorcycles worth
a total of approximately $800. Plaintiff estimates that her family’s average monthly expenses total
$1416.02, and she does not expect any major changes to her monthly income or expenses in the next
twelve months.
A plaintiff need not be absolutely destitute to enjoy the benefit of proceeding in forma
pauperis. Adkins v. E.I. DuPont De Nemours & Co., 335 U.S. 331, 339 (1948). Nor should a
plaintiff have to enter destitution in order to pay a filing fee. Id. The question turns on whether a
plaintiff can pay for the costs and “and still be able to provide himself and dependants with the

1

Dkt. Nos. 1 & 2, respectively.

necessities of life.” Id.2 Further, in assessing an application to proceed as a pauper, “a court may
consider the resources that the applicant has or ‘can get’ from those who ordinarily provide the
applicant with the ‘necessities of life,’ such as ‘from a spouse, parent, adult sibling or other next
friend.” Fridman v. City of New York, 195 F. Supp. 2d 534, 537 (S.D.N.Y. 2002) (quoting Williams
v. Spencer, 455 F. Supp. 205, 208–09 (D. Md. 1978). Here, Plaintiff’s monthly income exceeds her
expenses by just $100. Additionally, Plaintiff and her spouse have just $149.37 in total cash on hand.
Further, Plaintiff spends very little money per month on discretionary activities such as
entertainment and clothing. The Court will note that Plaintiff is not absolutely destitute; however,
as noted above, such a finding is not required in order to proceed in forma pauperis. It is apparent
that Plaintiff does not have enough readily available cash to pay the filing fee. Thus, requiring
Plaintiff to pay the $400 filing fee will result in Plaintiff having to forgo other necessities of life.
Accordingly, Plaintiff’s Application to Proceed Without Prepayment of Fees is GRANTED, and
it is ORDERED that Plaintiff be permitted to prosecute said action to its conclusion without
prepayment of costs or giving security therefor.
The Clerk of the Court is DIRECTED to transmit a copy of this Order to Plaintiff’s counsel,
issue a sixty day summons, and notify the United States Marshals Service who shall serve process
pursuant to Federal Rule of Civil Procedure 4(c). Any recovery in this action will be subject to
payment of fees and costs, including service of process fees and the $400.00 filing fee.

IT IS SO ORDERED.
DATE: January 22, 2014

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/s/ James E. Seibert
JAMES E. SEIBERT

The Supreme Court has elaborated on this standard in Rowland v. California Men’s Colony, Unit II Men’s
Advisory Council, 506 U.S. 194, 203 (citation omitted), stating: “Poverty, in its primary sense, is a human condition,
to be ‘[w]anting in material riches or goods; lacking in the comforts of life; needy.’”

UNITED STATES MAGISTRATE JUDGE