Katchever v. Berryhill

Filing 5

ORDER signed by Judge Pamela Pepper on 1/22/2018 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

MELISSA KATCHEVER,
Plaintiff,
v.

Case No. 17-cv-1764-pp

NANCY A. BERRYHILL,
Defendant.

ORDER GRANTING MOTION FOR LEAVE TO PROCEED WITHOUT
PREPAYMENT OF THE FILING FEE (DKT. NO. 3)

On December 19, 2017, the plaintiff filed a complaint seeking judicial
review of a final administrative decision denying her 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.
3.
In order to allow the plaintiff to proceed without paying the filing fee, the
court first must decide whether the plaintiff has the ability to pay the filing fee,
and if not, it must determine whether the lawsuit is frivolous. 28 U.S.C.
§§1915(a) and 1915(e)(2)(B)(i).
Based on the facts presented in the plaintiff’s affidavit, the court
concludes that she does not have the ability to pay the filing fee. The plaintiff
indicates that she is not employed, dkt. no. 3 at 1, and that she has FoodShare
income of $198, id. at 2. The affidavit states that her boyfriend supports her.
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Id. The plaintiff reports that she has rent of $315 per month and other
expenses of $200 per month; her monthly expenses total $515. Id. The plaintiff
owns a 2002 Pontiac Montana valued at $1,000, and she has no cash or
savings/checking accounts, and no other property of value. Id. at 3-4. She
explains that she can’t work due to her disabilities. Id. at 4. 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 Nietzke v. Williams, 490 U.S. 319,
325 (1989); Casteel v. Pieschek, 3 Fed. 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 states that the conclusions and findings of fact
of the defendant are not supported by substantial evidence and are contrary to
law and regulation. Dkt. No. 1 at 2. The complaint also indicates that to the
extent that any new evidence has been submitted, that evidence is new,
material and good cause exists for not presenting the evidence to the ALJ, and
that the claim should be reopened in light of the evidence and/or that the
refusal to consider the new evidence was based on a mistake of law. Id. At this
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early stage in the case, and based on the information in the plaintiff’s
complaint, the court concludes that there may be a basis in law or in 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 proceed without
paying the filing fee. Dkt. No. 3.
Dated in Milwaukee, Wisconsin this 22nd day of January, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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