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Gary W. Hearty v. Michael J. Astrue

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


October 7, 2011

GARY W. HEARTY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Murphy, District Judge:

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiff's application to proceed in forma pauperis (Doc. 3) and motion for service of process at Government expense (Doc. 4). On September 15, 2011, Plaintiff filed this civil complaint pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision by Defendant to deny Plaintiff's claim for disability benefits (Doc. 1). Plaintiff is proceeding pro se.

A federal court is authorized under 28 U.S.C. § 1915(a)(1) to permit an indigent party to proceed in a civil action without prepaying the filing fee if two conditions are met: (1) the petitioner is indigent and (2) the action is neither frivolous nor malicious. See, e.g., Smith-Bey v. Hospital Adm'r, 841 F.2d 751, 757-58 (7th Cir. 1981); Free v. United States, 879 F.2d 1535 (7th Cir. 1989). Under Local Rule of the United States District Court for the Southern District of Illinois 3.1(b), any person seeking leave to proceed in forma pauperis under 28 U.S.C. § 1915 shall submit an affidavit of poverty which shall conform, as nearly as possible and as applicable, with the form affidavit used pursuant to 28 U.S.C. § 2254.

In this case, Plaintiff has submitted a declaration supporting his application. The declaration contains the requisite information and reveals that he is not presently employed; he has not received money or income from any source in the last 12 months; he has no money in cash or in a checking or savings account; and he has a 36-month loan on a 2010 GMC vehicle. The Court finds Plaintiff to be indigent within the meaning of 28 U.S.C. § 1915(a)(1).

As an additional matter, the Court has reviewed Plaintiff's complaint and finds that, at this time, the action does not appear to be frivolous or malicious. See Jones v. Morris, 777 F.2d 1277, 1279-80 (7th Cir. 1985) (holding that a complaint is deemed frivolous only if a petitioner can make no rational argument in law or facts to support his claim for relief).

For the foregoing reasons, Plaintiff's motions for leave to proceed in forma pauperis (Doc. 3) and for service of process at Government expense (Doc. 4) are GRANTED as to this Court only. The Clerk of Court is DIRECTED to complete, on Plaintiff's behalf, a summons and a form USM-285 for service of process on Defendant, the United States Attorney for the Southern District of Illinois, and the Attorney General of the United States; the Clerk SHALL issue the completed summons. Pursuant to Federal Rule of Civil Procedure 4(i), the United States Marshal SHALL (1) send by registered or certified mail a copy of the summons, the complaint, and this Memorandum and Order to Defendant; (2) personally deliver to or send by registered or certified mail addressed to the civil-process clerk at the office of the United States Attorney for the Southern District of Illinois a copy of the summons, the complaint, and this Memorandum and Order; and (3) send by registered or certified mail to the Attorney General of the United States at Washington, D.C., a copy of the summons, the complaint, and this Memorandum and Order. All costs of service shall be advanced by the United States, and the Clerk shall provide all necessary materials and copies to the United States Marshals Service.

It is FURTHER ORDERED that Plaintiff shall serve upon Defendant, or upon Defendant's attorney if appearance has been entered by counsel, a copy of every further pleading or other document submitted for consideration by this Court. Plaintiff shall include with the original paper to be filed a certificate stating the date that a true and correct copy of the document was mailed to Defendant or Defendant's counsel. Any paper received by a district judge or a magistrate judge which has not been filed with the Clerk of Court or which fails to include a certificate of service will be disregarded by the Court.

IT IS SO ORDERED.

G. PATRICK MURPHY United States District Judge

20111007

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