Hofstad v. Colvin

Filing 5

ORDER signed by Judge Pamela Pepper on 2/3/2017 GRANTING 3 Motion for Leave to Proceed Without Prepayment of the Filing Fee. (cc: all counsel) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
CHAD HOFSTAD,

Case No. 17-cv-100-pp
Plaintiff,

v.
NANCY BERRYHILL,
Acting Commissioner of the
Social Security Administration,1
Defendant.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S
REQUEST TO PROCEED IN FORMA PAUPERIS (DKT. NO. 3)
______________________________________________________________________________
The plaintiff has filed a complaint asking that the court review the
Commissioner’s denial of his Social Security Disability Insurance claims. Dkt.
No. 1. With the complaint, the plaintiff filed an affidavit in support of his
request 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 does not work and receives
no monthly income. Dkt. No. 3, at 1-2. He is not married and supports no
dependents. Id. at 1. He owns his home, valued at $8,000, and a car, valued at
Nancy Berryhill became the Acting Commissioner of Social Security as of
January 23, 2017. Accordingly, the court has amended the caption to
substitute Ms. Berryhill as the defendant in this action.
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$2,000. Id. at 3. The plaintiff states that he has $300 in a checking account. Id.
at 3. The plaintiff indicates that he has monthly expenses of $173 in car
payments, $129 for car insurance, $50 for his cell phone, and $40 for home
owner’s insurance. Id. at 2. The court concludes from that information that the
plaintiff has demonstrated that he cannot pay 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 asserts that “the Commissioner’s
unfavorable conclusions and findings of fact are not supported by substantial
evidence; and/or are contrary to law and regulation.” Dkt. No. ` at 2. At this
early stage in the case, the court concludes that there may be a basis in law or
fact for the plaintiff’s appeal of the Commissioner’s decision, and that the

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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 3rd day of February, 2017.

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