Borges v. Berryhill

Filing 4

ORDER signed by Judge J.P. Stadtmueller on 10/13/2017 DENYING without prejudice 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee. Within 14 days, Plaintiff to file: revised motion for leave to proceed without prepayment of the filing fee and an amended complaint utilizing the Court's Social Security complaint form. See Order. (Attachments: # 1 Social Security Complaint Form) (cc: all counsel, via mail to Lila Marie Borges) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LILA MARIE BORGES,
Plaintiff,

v.

Case No. 17-CV-1323-JPS

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant.

ORDER

Plaintiff, proceeding pro se, 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. N. Am. Van Lines, Inc., 461 F.2d 649, 651
(7th Cir. 1972). In her motion for leave to proceed in forma pauperis, Plaintiff
was required to make statements about her income, expenses, and assets
under oath. (Docket #2). Her motion is largely blank, however, which leaves
the Court unable to determine whether she is truly indigent.

Plaintiff named “SSI” as the defendant in her case, but it is plain to the
Court that she intended to sue the Commissioner of Social Security for relief from
an adverse determination on her right to benefits. See (Docket #1 at 1–2). The Court
therefore substitutes the appropriate defendant on her behalf.
1

While she reports that she is unemployed, unmarried, and has no
dependents, she gives no information whatsoever about her sources of
income or her expenses, if any. See id. at 1–2. As for her assets, she states
that she does not own a car or home and has no cash or bank accounts. Id.
at 3. In explaining her circumstances further, Plaintiff avers that she is
currently living with her mother and that she has been unable to work as a
result of her ongoing medical problems and associated pain. Id. at 4.
These averments do not equip the Court with the information it
needs to decide her motion for leave to proceed in forma pauperis. While the
Court acknowledges that it may be difficult for Plaintiff to pay the filing fee
if she is not presently working, it is not clear from the record that Plaintiff
would be unable “to provide [her]self. . .with the necessities of life” if
required to pay the filing fee. Adkins v. E.I. DuPont de Nemours & Co., 335
U.S. 331, 339 (1948). This may well be true, of course, but Plaintiff simply
has not provided the necessary information.
Additionally, the Court cannot determine from the face of Plaintiff’s
complaint whether her action is frivolous. In her complaint, Plaintiff alleges
that her disability benefits were discontinued after a hearing before a
judge—who the Court assumes was an administrative law judge (“ALJ”) of
the Social Security Administration. (Docket #1 at 2). She accuses the ALJ of
being biased against her and of failing to review certain relevant evidence.
Id. at 2–3. Plaintiff requests that her disability benefits be reinstated. Id. at 4.
These allegations, construed generously, largely suffice to show that
Plaintiff believes she was wrongfully denied disability benefits. However,
the Court cannot determine whether Plaintiff appealed the ALJ’s adverse
decision to the Social Security Appeals Council, which is a necessary

Page 2 of 4

prerequisite to filing suit in this Court. See Johnson v. Sullivan, 922 F.2d 346,
348, 352 (7th Cir. 1990).
Thus, the Court has two reasons to doubt this case can proceed in the
present posture. Yet rather than deny Plaintiff leave to proceed in forma
pauperis or dismiss her case outright, the Court will deny the motion for
leave to proceed in forma pauperis without prejudice and allow Plaintiff
fourteen days in which to submit a revised motion which is complete in all
material respects. The Court will then review the revised motion and render
a decision on whether Plaintiff may proceed without prepayment of the
filing fee in this case.
Further, the Court will direct Plaintiff to submit an amended
complaint within fourteen days that cures the deficiencies the Court
identified above. The Court provides to the public a form complaint
specifically crafted for those wishing to make claims based on the denial of
Social Security disability benefits. In the form, the plaintiff is given the
opportunity to explain her efforts at exhausting her administrative
remedies, including the dates of decisions made by the ALJ and the Appeals
Council. To ensure that her amended complaint contains this information,
the Court is enclosing with this Order a blank copy of the form Social
Security complaint.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed in forma
pauperis (Docket #2) be and the same is hereby DENIED without prejudice;
and
IT IS FURTHER ORDERED that Plaintiff shall file, within fourteen
(14) days of the date of this Order, (1) a revised motion for leave to proceed

Page 3 of 4

in forma pauperis and (2) an amended complaint utilizing the Court’s Social
Security complaint form, as directed in this Order.
Dated at Milwaukee, Wisconsin, this 13th day of October, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

Page 4 of 4