Ninedorf v. O'Malley

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

KIMBERLY G. NINEDORF, Plaintiff, Case No. 23-cv-998-pp v. KILOLO KIJAKAZI, Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING FILING FEE (DKT. NO. 2)

The plaintiff has 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. She also filed a motion for leave to proceed without prepaying the filing fee. Dkt. No. 2.

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 she does not have the ability to pay the filing fee. The plaintiff indicates that she is not employed, she is not married and she has no dependents she is responsible for supporting. Dkt. No. 2 at 1. The plaintiff says that she receives approximately $225 per month in support from her family. Id. at 2. The plaintiff lists $204.64 per month in expenses ($140 storage unit, $11.97 American Heritage, $52.67 GlobeLife insurance premium); under “Other household expenses,” the plaintiff listed Medicade-Quest Card.” Id. at 2-3. The plaintiff does not own a car or her home and says she has approximately $205.63 in cash on hand or in a checking or savings account. Id. at 3. Under the question “Do you own any other property of value . . .,” the plaintiff checked the box for “No” but says “currently in process of title transfer (property).” Id. at 4. The plaintiff also states, “I have not worked since my stroke since Sept. 18, 2021 and have no income. I have been depending on family members. I can’t drive due to stroke. I have problems with memory and finding thoughts.” Id. The plaintiff has demonstrated that she cannot pay the $350 filing fee and $52 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 states she was denied benefits for lack of disability, that she 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 federal laws and regulations. Dkt. No. 1 at 1-2. 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. 2.

Dated in Milwaukee, Wisconsin this 28th day of July, 2023.

BY THE COURT: Chief United States District Judge