Garcia v. Colvin

Filing 5

ORDER signed by Judge Rudolph T. Randa on 4/22/2014 GRANTING 2 Motion for Leave to Proceed in forma pauperis. (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GUADALUPE GARCIA,
Plaintiff-Claimant,
v.

Case No. 14-C-415

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant-Respondent.

DECISION AND ORDER
Plaintiff-Claimant Guadalupe Garcia (“Garcia”) seeks leave to proceed in
forma pauperis on her appeal from the denial of her social security disability benefits
and Medicare claims.1 In order to authorize a litigant to proceed in forma pauperis
(“IFP”), the Court must make two determinations: First, whether the litigant is unable
to pay the costs of commencing this action; and, second, whether the action is
frivolous or malicious. 28 U.S.C. §§ 1915(a) and (e)(2)(B)(i). The Court must deny a
request to proceed IFP if (1) the allegation of poverty is untrue; (2) the action is
frivolous; (3) the action fails to state a claim; or (4) the action seeks monetary relief
against an immune defendant. 28 U.S.C. § 1915(e)(2).
By her petition and affidavit to proceed in forma pauperis, Garcia avers that
1

Section 1395ff(b)(1)(A) of Title 42 of the United States Code, (West, Westlaw through P.L.
113-93, 2014), provides for judicial review of the final decision of the Secretary of Health and
Human Services under 42 U.S.C. § 405(g). See Wilkins v. Sullivan, 889 F.2d 135, 141 (7th Cir.
1989).

she is unemployed and married. Garcia’s husband receives disability compensation in
the amount of $1,913.00 and he has monthly rental income of $3,238.00. Garcia and
her husband own a residence worth $150,400 with a $15,787 mortgage, meaning that
they have over $134,000 in equity. They also own three older vehicles worth a total
of $4,000; and they have $400 in checking and/or saving accounts.

Garcia’s

expenses which total $5,041.69 result in about $190.00 per month to spare.
However, there is also inconsistency in the information because Garcia indicates that
her taxes and home insurance are included in their mortgage; nonetheless, she also
lists home insurance ($47.71) and property insurance ($144.00) as monthly expenses.
So Garcia and her husband may have about another $190 to spare.
Based on the information provided, the Court concludes that, although it is a
close question,2 Garcia has satisfied the requirements of 28 U.S.C. § 1915(a) by
demonstrating that she is unable to pay the entire $350 filing fee for this action.
Furthermore, Garcia’s Complaint, supplemented by the accompanying brief,
state an arguable claim for relief. Accordingly, Garcia’s petition for leave to proceed
in forma pauperis is granted.

2

Effective May 1, 2013, the filing fee for a civil case was increased to $400.00 by the
addition of a new $50.00 administrative fee for filing a civil action, suit, or proceeding in a district
court. See Judicial Conference Schedule of Fees-District Court Miscellaneous Fee Schedule, 28
U.S.C. § 1914, No. 14. A litigant who is granted IFP status, however, is exempt from paying the new
$50.00 fee and must pay a total fee of $350.00.

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NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
Garcia’s petition for leave to proceed in forma pauperis (ECF No. 2) is
GRANTED.
Dated at Milwaukee, Wisconsin, this 22nd day of April, 2014.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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