Koboski v. Colvin

Filing 6

ORDER signed by Judge Pamela Pepper on 8/17/2016 GRANTING 3 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee. (cc: all counsel) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
NATHAN KOBOSKI,

Case No. 16-CV-1045-PP

Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S
REQUEST TO PROCEED IN FORMA PAUPERIS (DKT. NO. 3)
______________________________________________________________________________
On August 8, 2016, the plaintiff filed a complaint requesting that the
court review the denial of his social security benefits. Dkt. No. 1. Along with the
complaint, the plaintiff filed an affidavit in support of his motion that the court
allow him to proceed with the case without paying the filing fee. Dkt. No. 3. In
order to allow a plaintiff to proceed without paying the filing fee, the court must
first decide whether the plaintiff has the ability to pay the filing fee, and if not,
must determine whether the lawsuit is frivolous. 28 U.S.C. §§1915(a) and
(e)(2)(B)(i).
In the affidavit, the plaintiff indicates that he is unemployed but receives
a small amount of money (between $0 and $20 monthly) as a loan from his
mother, and $100 a month as income from his mother. Dkt. No. 1-2. He lists
no expenses, and no physical assets—no car, no house. Id. at 2. He has
approximately $2,000 in an Roth IRA, but he cannot access that money
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without a penalty. Id. at 4. The plaintiff has demonstrated that he cannot pay
the full amount of the $350 filing fee and $50 administrative fee.
The next step is to determine whether the case is frivolous. A case is
frivolous if there is no arguable basis for relief either in law or in fact. Denton v.
Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319,
325 (1989)); Casteel v. Pieschek, 3 F.3d 1050, 1056 (7th Cir. 1993).
A person may obtain district court review of a final decision of the
Commissioner of Social Security. 42 U.S.C. §405(g). The district court must
uphold the Commissioner’s final decision as long as the Commissioner used
the correct legal standards and the decision is supported by substantial
evidence. See Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013).
In his complaint, the plaintiff seeks review of the Commissioner’s
decision denying him disability and social security benefits. Dkt. No. 1 at 2.
The plaintiff allege in the complaint that he was disabled during the time
period reviewed by the ALJ, and states that “[t]he plaintiff believes the
Commissioner’s unfavorable conclusions and findings of fact are not supported
by substantial evidence; and/or are contrary to law and regulation.” Id. He also
attached the unfavorable decision from the Administrative Law Judge and the
notice of action from the Appeals Council. Dkt No. 1-2; Dkt. No. 1-3.
Based on the allegations of the complaint, the court cannot find at this
point that the plaintiff’s claims are frivolous or without merit. At this early
stage in the case, the court concludes that there may be a basis in law or fact

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for the plaintiff’s appeal of the Commissioner’s decision, and that the appeal
may have merit, as defined by 28 U.S.C. §1915(e)(2)(B)(i).
The court ORDERS that the plaintiff’s motion for leave to appeal in forma
pauperis (Dkt. No. 3) is GRANTED.
Dated in Milwaukee, Wisconsin this 17th day of August, 2016.

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