Mass v. Berryhill
Filing
5
ORDER signed by Judge J.P. Stadtmueller on 7/13/2017 DENYING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee. Plaintiff to pay the full $400.00 filing fee in this action within 14 days; failure to do so will result in dismissal of this action without prejudice and without further notice. (cc: all counsel) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRENDA MASS,
Plaintiff,
v.
Case No. 17-CV-945-JPS
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
ORDER
Defendant.
Brenda Mass filed a complaint in this matter and a motion for leave
to proceed in forma pauperis. (Docket #1 and #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. N. Am. Van Lines, Inc.,
461 F.2d 649, 651 (7th Cir. 1972). Plaintiff does not satisfy that definition in
this case.
In her motion for leave to proceed in forma pauperis, Plaintiff made
statements about her income and expenses under oath. (Docket #2).
Plaintiff indicates that she is unemployed and that she has two minor
children who are dependent on her. Id. at 2. Plaintiff’s spouse earns nearly
$3,300 per month, has a 401(k) of approximately $20,000, and the family
owns two vehicles whose values are unstated. Id. at 3-4. Plaintiff avers that
her family’s expenses are about $3,200 per month, though she only
itemizes about $2,000 of that figure. Id. at 4. The Court is left to guess what
expenses form the remaining $1,200 per month. Plaintiff explains that the
family has difficulty paying bills because they are currently in bankruptcy.
Id. at 5.
Even as stated in her motion, Plaintiff’s monthly income slightly
exceeds her expenses, militating away from a finding of indigence.
Further, she fails to account for a substantial portion of her expenses.
Again, in forma pauperis status is a privilege and Plaintiff cannot earn it
without a complete and truthful disclosure of her finances. Finally, her
overall family resources are substantial, even if paying certain bills may be
burdensome. In sum, the Court cannot fairly conclude that Plaintiff is
indigent for the purpose of Sections 1915(a) and (e)(2). While the Court
acknowledges that it may be difficult for Plaintiff to pay the filing fee, it is
not clear that Plaintiff would be unable “to provide [her]self. . .with the
necessities of life” if required to pay, 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 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 Plaintiff’s motion for leave to proceed in
forma pauperis (Docket #2) be and the same is hereby DENIED; Plaintiff
shall pay the full $400.00 filing fee in this action within fourteen (14) days
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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 13th day of July, 2017.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
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