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Linda P.v. Berryhill

United States District Court, D. Maine

April 5, 2019

LINDA P., Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND RECOMMENDED DISMISSAL OF THE CASE

          JOHN H. RICH III, UNITED STATES MAGISTRATE JUDGE

         Pro se plaintiff Linda Penkul seeks in forma pauperis status in connection with her complaint challenging a reduction by the Social Security Administration (“SSA”) in her monthly Supplemental Security Income (“SSI”) benefit payments. See Complaint for Review of a Social Security Disability or Supplemental Security Income Decision (“Complaint”) (ECF No. 1) at Page ID # 9; Application To Proceed in District Court Without Prepaying Fees or Costs (“IFP Appl.”) (ECF No. 3). For the reasons that follow, I grant the plaintiff's request for leave to proceed in forma pauperis and recommend that the court dismiss this action without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).

         I. Application To Proceed in Forma Pauperis

         In forma pauperis status is available under 28 U.S.C. § 1915(a)(1). In her application to proceed in forma pauperis, the plaintiff declares, under penalty of perjury, that she has monthly income of $488 in SSI benefits and $10 in public assistance, has $50 in a bank account, and has monthly expenditures of $488 for utilities, $99 for medical and dental expenses, $161 for insurance, $2, 763 for taxes, and $27 for department store charges. See IFP Appl. at 1-2, 4. Her expenses, hence, greatly exceed her monthly income. While she lists assets of a home worth $190, 000 and a 2014 Dodge Charger worth $14, 000, see id. at 3, her lack of liquid assets and negative cash flow qualify her for IFP status, see, e.g., Taylor v. Sup. Ct. of N.J., 261 Fed.Appx. 399, 401 (3d Cir. 2008) (lower court abused its discretion in denying plaintiff IFP status when, while plaintiff had assets including a home worth approximately $90, 000 and was not “absolutely destitute, ” he, his wife, and six children were living below the applicable federal poverty guideline, and he had shown that he was “indigent” and unable to pay court fees) (internal quotation marks omitted).

         II. Section 1915(e)(2)(B) Review

         A. Applicable Legal Standard

         The federal in forma pauperis statute, 28 U.S.C. § 1915, is designed to ensure meaningful access to the federal courts for those persons unable to pay the costs of bringing an action. When a party is proceeding in forma pauperis, however, “the court shall dismiss the case at any time if the court determines[, ]” inter alia, that the action is “frivolous or malicious” or “fails to state a claim on which relief may be granted” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

         “Dismissals [under § 1915] are often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering such complaints.” Neitzke v. Williams, 490 U.S. 319, 324 (1989); see also Mallard v. U.S. Dist. Ct. S.D. Iowa, 490 U.S. 296, 307-08 (1989) (“Section 1915(d), for example, authorizes courts to dismiss a ‘frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision.”).[1]

         When considering whether a complaint states a claim for which relief may be granted, a court must assume the truth of all well-plead facts and give the plaintiff the benefit of all reasonable inferences therefrom. Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). A complaint fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         B. Factual Background

         In her complaint, filed on January 17, 2019, the plaintiff sought review of an SSA overpayment decision dated September 11, 2018. See Complaint at Page ID # 5. She alleged that she had timely requested reconsideration but that, as of January 15, 2019, the SSA had issued no decision with respect to that request. See Id. at Page ID ## 5-6.

         On February 11, 2019, the plaintiff filed a copy of an SSA notice of reconsideration dated February 5, 2019, denying her appeal and advising that she had 60 days within which to seek a hearing before an administrative law judge if she disagreed with its decision. See ECF No. 7-1 at Page ID # 157-58.

         On February 15, 2019, the plaintiff filed a copy of an SSA notice dated February 12, 2019, stating that her monthly SSI payment would be $566 in March 2019 and that she would receive $553.10 on or about March 1, 2019, and on the first of each month thereafter. See ECF No. 8-1 at Page ID # 166. That notice stated that the plaintiff had 60 days within which to request reconsideration of that determination. See id. at Page ID # 167. Most recently, on March 11, 2019, the plaintiff filed a copy of an SSA letter dated March 4, 2019, responding to a request that she had made for information from her record. See ECF No. 10-1 at Page ID # 175.

         C. ...


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