Ferrington v. Kijakazi

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

JEFF FERRINGTON,

Plaintiff, Case No. 20-cv-357-pp v.

ANDREW SAUL,

Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING THE FILING FEE (DKT. NO. 3)

The plaintiff has 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. He also filed a motion for leave to proceed without prepaying the filing fee. Dkt. No. 3. To allow the plaintiff to proceed without paying the filing fee, the court first must decide whether the plaintiff can pay the fee; 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 in the plaintiff’s affidavit, the court concludes that he does not have the ability to pay the filing fee. The plaintiff states that he is not employed, he is married, and he has a 12-year-old son he is responsible for supporting. Dkt. No. 3 at 1. The plaintiff received $80 per month in child support, and his spouse earns $2,000 per month. Id. at 2. The plaintiff lists expenses of $1,640 per month ($330 mortgage, $465 car payment, $25 credit card payments $600 other household expenses, $100 dish, $120 car insurance). Id. at 2-3. The plaintiff owns a 2009 Ford Fusion worth approximately $2,000; he owns his home worth approximately $50,000, with equity of $2,000; he has $300 in cash on hand or in a checking or savings

account, and his wife has $500 in a 401k. Id. at 3-4. The plaintiff states, “Getting hard to keep up with bills and take care of a 12 year old. Have no extra money if something would happen. Only getting 80.00 month for my son. I can’t do much. I’m tired all the time and can’t keep up and out of breath.” Id. at 4. 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 Nietzke 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 was denied Social Security benefits for lack of disability, that he is disabled, and that the conclusions and findings of fact by the Commissioner when denying benefits are not supported by substantial evidence and are contrary to law and regulation. Dkt. No. 1 at 1. At this 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 plaintiffs motion for leave to proceed without prepaying the filing fee. Dkt. No. 3. Dated in Milwaukee, Wisconsin this 6th day of March, 2020. BY THE COURT:

Chief United States District Judge