Herbst v. Berryhill

Filing 5

ORDER signed by Judge J.P. Stadtmueller on 6/6/2017 GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JEREMY J. HERBST,

v.

Plaintiff,

NANCY A. BERRYHILL,

Case No. 17-CV-724-JPS

ORDER

Defendant.
Jeremy J. Herbst filed a complaint in this matter and a motion for
leave to proceed in forma pauperis. (Docket #1 and #2). The Court may
grant the plaintiff’s motion to proceed in forma pauperis 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 has filed an affidavit accompanying the
motion to proceed in forma pauperis, which demonstrates that he is
indigent. (Docket #2). More precisely, the affidavit shows that the plaintiff
is unemployed and his only source of income is a monthly allotment of
$561 in food stamps, which he uses for groceries. Id. at 2, 4. The plaintiff
also indicates that he has one dependent child. Id. at 2. He owns a vehicle
worth $1,500 but no home; he and his spouse live with his spouse’s family.

Id. at 3, 5. The Court is satisfied that the plaintiff is indigent and cannot
afford the filing fee.
The plaintiff’s action also is not frivolous or malicious. The
complaint includes an allegation that the Social Security Administration
committed an error of law in reaching a decision. (Docket #1). If that
contention is true, then the Court will be obliged to vacate the decision.
Thus, the plaintiff’s action is neither frivolous nor malicious.
For those reasons, the Court will grant the plaintiff’s motion for
leave to proceed in forma pauperis.
Accordingly,
IT IS ORDERED that the plaintiff’s motion for leave to proceed in
forma pauperis (Docket #2) be and the same is hereby GRANTED.
Dated at Milwaukee, Wisconsin, this 6th day of June, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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