Frankowiak v. Berryhill

Filing 5

ORDER signed by Judge Pamela Pepper on 11/7/2017 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
GREGORY FRANKOWIAK,
Plaintiff,
v.

Case No. 17-cv-1447-pp

NANCY BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
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 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, 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 he is responsible for supporting his fifteen-year-old son, dkt. no. 2 at 1,
and that he has no income other than $195.00 per month from Food Share, id.

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at 2. He states that his monthly rent is $485.00, id., and that he borrows
money from his family to pay his rent, id. at 4. In addition, the plaintiff has a
car worth approximately $100.00, and no cash or money in a savings/checking
account. Id. at 3. 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’s complaint indicates that he believes the Commissioner’s
unfavorable conclusions and findings of fact are not supported by substantial
evidence, and/or are contrary to law and regulation. Dkt. No. 1 at 2. 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

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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 7th day of November, 2017.
BY THE COURT:
____________________________________
HON. PAMELA PEPPER
United States District Judge

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