Binion v. Commissioner of the Social Security Administration

Filing 4

ORDER signed by Judge J.P. Stadtmueller on 2/16/2017 GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee. (cc: all counsel, via mail to Plaintiff) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
J.E. BINION, JR., by his next friend,
PATRICIA PENA,
Case No. 17-CV-193-JPS
Plaintiff,
v.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,

ORDER

Defendant.
Patricia Peña, on behalf of her minor son, J.E. Binion, Jr., filed a
complaint in this matter and a motion for leave to proceed in forma pauperis.
(Docket #1, #2). The Court may grant Plaintiff’s motion to proceed in forma
pauperis if it determines that: (1) Plaintiff is truly indigent and unable to pay
the costs of commencing this action; and (2) 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).
Plaintiff has filed an affidavit accompanying the motion to proceed in forma
pauperis. (Docket #2). Unfortunately, based on how this document has been
completed, the Court is largely unable to conclude that Plaintiff is truly
indigent. More precisely, Plaintiff simply wrote an “x” for each and every line
item. (Docket #2). In other words, according to Plaintiff, she (and her son)
have neither any income, nor any expenditures.

When plaintiffs file affidavits like these, the Court normally cannot
conclude whether the plaintiff is able to afford the filing fee and must deny the
motion for leave to proceed in forma pauperis. However, Plaintiff also wrote
in the motion that she is unable to keep a job due to her son’s alleged
disabilities and that she is her son’s constant caretaker. Id. at 4. This
representation satisfies the Court that Plaintiff’s expenses would meet or
exceed her income. Thus, the Court finds that Plaintiff is indigent and cannot
afford the filing fee.
Plaintiff’s action also is not frivolous or malicious. Plaintiff submitted
a complaint, which includes an allegation that the Administrative Law Judge
(“ALJ”) erred in reaching a decision. (Docket #1 at 3). If that contention is true,
then the Court will be obliged to vacate the ALJ’s decision. Thus, Plaintiff’s
action is neither frivolous nor malicious.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed in forma
pauperis (Docket #2) be and the same is hereby GRANTED.
Dated at Milwaukee, Wisconsin, this 16th day of February, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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