Kaelin v. Berryhill

Filing 5

ORDER signed by Judge Pamela Pepper on 10/30/2017 GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee. (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

BRIAN KAELIN,
Plaintiff,
v.

Case No. 17-cv-1346-pp

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
ORDER GRANTING MOTION FOR LEAVE TO PROCEED WITHOUT
PREPAYMENT OF THE FILING FEE (DKT. NO. 2)
On October 2, 2017, the plaintiff filed a complaint seeking judicial
review of a final administrative decision denying his claim for disability
insurance benefits under the Social Security Act. Dkt. No. 1. The plaintiff also
filed a motion for leave to proceed without prepayment of the filing fee. Dkt.
No. 2.
In order to allow a plaintiff to proceed without paying the filing fee, the
court must first decide whether the plaintiff has the ability to pay the filing
fee, and if not, must determine whether the lawsuit is frivolous. 28 U.S.C.
§§1915(a) and (e)(2)(B)(i).
Based on the facts presented in the affidavit, the court concludes that
the plaintiff does not have the ability to pay the filing fee. The plaintiff states
that he is not employed, and last earned $800 in May of 2017. He is the legal
guardian of a twelve-year old, and owns no car, residence or other assets.
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According to the plaintiff, he has $2 in his checking account. The court
concludes from that information that the plaintiff has demonstrated that he
cannot pay the $350 filing fee and $50 administrative fee.
The next step is to determine whether the case is frivolous. A case is
frivolous if there is no arguable basis for relief either in law or in fact. Denton
v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S.
319, 325 (1989); Casteel v. Pieschek, 3 F.3d 1050, 1056 (7th Cir. 1993)). A
person may obtain district court review of a final decision of the
Commissioner of Social Security. 42 U.S.C. §405(g). The district court must
uphold the Commissioner’s final decision as long as the Commissioner used
the correct legal standards and the decision is supported by substantial
evidence. See Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013).
The plaintiff asserts that he is disabled, and that the defendant’s
conclusions of law and findings of fact are not supported by substantial
evidence and are contrary to law. At this early stage in the case, the court
concludes that there may be a basis in law or fact for the plaintiff’s appeal of
the Commissioner’s decision, and that the appeal may have merit, as defined

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by 28 U.S.C. §1915(e)(2)(B)(i).
The court GRANTS the plaintiff’s motion for leave to proceed without
prepayment of the filing fee (Dkt. No. 2).
Dated in Milwaukee, Wisconsin this 30th day of October, 2017.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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