Shier v. Berryhill

Filing 4

ORDER signed by Judge J.P. Stadtmueller on 2/23/2017 DENYING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee. Plaintiff to pay full $400.00 filing fee within 14 days; failure to do so will result in dismissal of action without prejudice and without further notice. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KRISTINE SHIER,
Plaintiff,

Case No. 17-CV-226-JPS

v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,

ORDER
Defendant.
The plaintiff filed a complaint in this matter and a motion for leave to
proceed without prepayment of the filing fee. (Docket #1 and #2). 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) and (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 her motion for leave to proceed in forma pauperis, the plaintiff made
statements about her income and expenses under oath. (Docket #2). She
indicates that she and her spouse are unemployed and that she has a minor
child who is dependent on her. Id. at 2. The plaintiff further states that she
owns no other property such as a vehicle or residence. Id. at 3. Still, she states
that she has an income of $653 per month, though she does not describe its

source. Id. at 4. The only expenses the plaintiff itemizes are rent and phone
service, which total $575. Id.
With this limited amount of information, it appears the plaintiff’s
income exceeds her expenses. As such, the Court cannot fairly conclude that
the plaintiff is indigent for the purpose of Sections 1915(a) and (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
[her]self…with the necessities of life,” if required to pay the filing fee, and so
the Court cannot find her 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 her motion for leave to proceed in
forma pauperis and require her to pay that fee within 14 days. If she 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 #2) 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 23rd day of February, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge
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