United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFF'S REQUEST TO PROCEED IN
FORMA PAUPERIS (DKT. NO. 2) AND DENYING WITHOUT PREJUDICE
MOTION TO APPOINT COUNSEL (DKT. NO. 3).
PEPPER United States District Judge
plaintiff has filed a complaint asking that the court review
the Commissioner's denial of his Social Security
Disability Insurance claims. Dkt. No. 1. To pursue his claim,
he also filed a motion for leave to proceed without
prepayment of the filing fee, dkt. no. 2, and a motion to
appoint counsel, dkt. no. 3.
MOTION TO PROCEED IN FORMA PAUPERIS
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).
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 and his wife earn $5, 487 per month
in income. Dkt. No. 2 at 2. They support one minor child and
one 22-year-old child. Id. at 1. The plaintiff's
monthly expenses exceed $5, 000, including $1, 065 for rent,
$931 for car payments, $400 for food and $491 in car
insurance. Id. at 2-3. He does not have any money in
a checking or savings account, but does own a 401K account
containing $500. Id. The court concludes from that
information that the plaintiff has demonstrated that he
cannot pay the $350 filing fee and $50 administrative fee.
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)).
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).
complaint, the plaintiff asserts that he is a 56-year-old
veteran diagnosed with Axis 1: paranoid schizophrenia, 100%
disabling-contrary to the Commissioner's findings. Dkt.
No. 1 at 5. 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). Accordingly, the court will grant the
motion to proceed in forma pauperis. The court will
now address the plaintiff's motion to appoint counsel.
Dkt. No. 3.
MOTION TO APPOINT COUNSEL
litigants do not have a constitutional or statutory right to
appointed counsel, but the court has the discretion to
request lawyers to represent indigent litigants in
appropriate cases under 28 U.S.C. §1915(e)(1).
Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007)
(en banc); Lutrrell v. Nickel, 129 F.3d
933, 936 (7th Cir. 1997) (citing Zarnes v. Rhodes,
64 F.3d 285, 288 (7th Cir. 1995)). The court cannot appoint a
lawyer for every person who asks, because the court's
resources are limited. As a threshold matter, a litigant must
make a reasonable attempt to obtain a lawyer on her own.
Pruitt, 503 F.3d at 654-55; Zarnes, 64 F.3d
motion, the plaintiff lists the names of four attorneys he
contacted and their reason for denial. Dkt. No. 3 at 2-3. The
Seventh Circuit has not clearly defined the phrase
“reasonable attempt to obtain counsel, ” but it
has affirmed one court's requirement that the litigant
provide the names and addresses of at least three attorneys
that the litigant contacted and who turned him down.
Romanelli v. Suilene, 615 F.3d 847, 852 (7th Cir.
2010). The petitioner has met this first Pruitt
litigant has tried to find a lawyer and has been
unsuccessful, or shows that he was effectively prevented from
trying to find a lawyer, the court must decide the next
question: is the case so complicated, both factually and
legally, that the litigant does not appear able to handle the
case himself? Pruitt, 503 F.3d at 654 (citing
Farmer v. Hass, 990 F.2d 319, 322 (7th Cir. 1993)).
In reality, proceeding without representation in federal
court is a difficult battle. The court understands that many
people would have trouble presenting legal theories without
counsel. But the Pruitt test requires the court to
determine (1) whether the plaintiff's particular claims
are more complex than similar complaints, and (2) whether
this plaintiff's competency level seems below that of
other plaintiffs who litigate such claims pro se.
See Jackson v. Kotter, 541 F.3d 688, 700 (7th Cir.
2008) (As part of its exercise in discretion, the district
court was required to consider both “the difficulty of
the plaintiff's claims and the plaintiff's competence
to litigate those claims himself”) (citing
Pruitt, 503 F.3d at 655).
stage of litigation, the court does not find that this case
is so factually or legally complicated that the plaintiff
could not handle it himself. The plaintiff has filed sixteen
other federal cases and appears to be familiar with court
procedures, or, at the very least, has the ability to access
helpful resources. Dkt. No. 3 at 2 (referring to the
court's Pro Se Guide). Furthermore, the plaintiff
submitted the notice of appeals council action, Dkt. No. 1-1
at 2, but did not submit the ALJ's decision. Thus, the
court has limited information and cannot conclude that the
plaintiff's case is more complicated than the typical
social security case. The court may reconsider this order if
further briefing necessitates it. At this point, however, the
court must deny the motion with prejudice.
court GRANTS the plaintiffs motion for leave
to appeal in forma pauperis (Dkt. No. 2). The court
DENIES WITHOUT PREJUDICE ...