Schultz v. Colvin

Filing 4

ORDER signed by Judge J.P. Stadtmueller on 1/20/2017 DENYING 3 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee. Plaintiff to pay full $400.00 filing fee within 14 days or action will be dismissed without prejudice or further notice. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
HENRY FRANCIS SCHULTZ,
Plaintiff,

Case No. 17-CV-79-JPS

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

ORDER
Defendant.
Henry Francis Schultz filed a complaint in this matter and a motion for
leave to proceed without prepayment of the filing fee. (Docket #1 and #3).
The Court may grant the plaintiff’s motion to proceed without prepayment
of the filing fee if it determines that: (1) the plaintiff is truly indigent and
unable to pay the costs of commencing this action; and (2) the plaintiff’s
action is neither frivolous nor malicious. 28 U.S.C. §§ 1915(a), (e)(2).
As to the first requirement, the privilege to proceed without payment
of costs and fees “is reserved to the many truly impoverished litigants
who…would remain without legal remedy if such privilege were not
afforded to them.” Brewster v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th
Cir. 1972). The plaintiff does not satisfy that definition in this case.
In his motion for leave to proceed in forma pauperis, the plaintiff made
statements about his income and expenses under oath. (Docket #3). The
motion indicates that the plaintiff has no income or expenses of any kind. Id.
This scenario is nigh unbelievable and the plaintiff offers no other explanation
in the “other circumstances” section of the form motion. Id. at 4. Given the
lack of specificity in the motion, the Court cannot fairly conclude that the

plaintiff is indigent for the purpose of 28 U.S.C. §§ 1915(a), (e)(2). While the
Court acknowledges that it may be difficult for the plaintiff to pay the filing
fee, it is not clear that the plaintiff would be unable “to provide
[him]self…with the necessities of life,” if required to pay the filing fee, and
so the Court cannot find him indigent. Adkins v. E.I. DuPont de Nemours &
Co., 335 U.S. 331, 339 (1948).
Because the Court finds that the plaintiff is able to pay the filing fee,
and so is not indigent, the Court will deny his motion for leave to proceed in
forma pauperis and require him to pay that fee within 14 days. If he fails to pay
that fee, the Court will dismiss this action without prejudice and without
further notice.
Accordingly,
IT IS ORDERED that the plaintiff’s motion for leave to proceed in
forma pauperis (Docket #3) be and the same is hereby DENIED; the plaintiff
shall pay the full $400.00 filing fee in this action within fourteen (14) days of
the entry of this order; failure to do so will result in the dismissal of this
action without prejudice and without further notice.
Dated at Milwaukee, Wisconsin, this 20th day of January, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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