Kwasniewski v. Berryhill
ORDER signed by Judge Pamela Pepper on 11/8/2017 GRANTING 3 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
SHERI ANN KWASNIEWSKI,
Case No. 17-cv-1445-pp
Acting Commissioner of Social Security,
ORDER GRANTING MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 3)
On October 23, 2017, the plaintiff filed a complaint seeking judicial
review of a partially favorable decision under the Social Security Act. Dkt. No.
1. The plaintiff also filed a motion for leave to proceed without prepayment of
the filing fee, or in forma pauperis. Dkt. No. 3.
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 indicates
that her monthly expenses account for all of her monthly wages or salary. Dkt.
No. 3 at 2-3. While the plaintiff noted that she receives Social Security
Insurance payments, she owns no car or home, and states that she has only
$44.45 in cash or a savings/checking account. Id. The court concludes from
that information that the plaintiff has demonstrated that she 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 is disputing the onset date of her disability, and she believes
that the commissioner’s unfavorable conclusions and findings of fact as to the
onset of disability are not supported by substantial evidence, and/or are
contrary to law and regulations. Dkt. No. 1 at 2-3. 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 by 28 U.S.C. §1915(e)(2)(B)(i).
The court GRANTS the plaintiff’s motion for leave to appeal in forma
pauperis (Dkt. No. 3).
Dated in Milwaukee, Wisconsin this 8th day of November, 2017.
BY THE COURT:
HON. PAMELA PEPPER
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?