Guerra v. Commissioner of Social Security

Western District of Texas, txwd-5:2019-cv-00711

ORDER GRANTING [1] Motion for Leave to Proceed in forma pauperis Signed by Judge Richard B. Farrer.

Interested in this case?

Current View

Full Text

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SELMA GUERRA, § § Plaintiff, § 5-19-CV-00711-DAE-RBF § vs. § § ANDREW SAUL, COMMISSIONER OF § SOCIAL SECURITY § ADMINISTRATION1, § § Defendant. § § ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS Before the court is the Motion to Proceed in forma pauperis, together with a sworn declaration in support, filed by Plaintiff Selma Guerra. See Dkt. No. 1. This action to review the final decision of the Commissioner of Social Security was assigned to the undersigned pursuant to 28 U.S.C. § 636(b), Rule 1(h) of Appendix C to the Court's Local Rules and the docket management order entered on September 29, 2017, in the San Antonio Division of the Western District of Texas. The undersigned has authority to enter this order pursuant to 28 U.S.C. § 636(b)(1)(A). By her motion, Plaintiff Guerra seeks leave to proceed in forma pauperis based on her inability to afford court fees and costs. All parties instituting any civil action, suit, or proceeding in a district court of the United States, except an application for a writ of habeas corpus, must pay a filing fee. See 28 U.S.C. § 1914(a). The Court, however, may waive the initial filing fee and costs where a plaintiff submits an affidavit reflecting that she is unable to pay these fees and 1 On June 17, 2019, Andrew Saul was sworn in as the Commissioner of Social Security. Accordingly, Saul has been substituted as the Defendant in this action. See Fed. R. Civ. P. 25(d). 1 costs. See 28 U.S.C. § 1915(a)(1); Hayes v. Scott, 116 F.3d 137, 140 (5th Cir. 1997) (finding that 28 U.S.C. § 1915(a)(1) is intended to apply to both prisoners and non-prisoners). Having considered the motion and declaration provided by Guerra, the Court finds that Guerra's circumstances justify waiving the filing fee in this case. IT IS ORDERED that Plaintiff Selma Guerra's Motion to Proceed in forma pauperis, Dkt. No. 1, is GRANTED. IT IS FURTHER ORDERED that Plaintiff Guerra's complaint shall be filed by the Clerk without prepayment of fees, costs, or the giving of security, and the Clerk shall, until further Order of this Court, waive the collection of any other fees or costs from Guerra. IT IS FURTHER ORDERED that, if not already accomplished, within ten (10) days of the date of this Order, Plaintiff Guerra shall either: • submit to the Clerk's Office a fully completed United States Marshal Service Form 285 ("USM Form"), including fully complete addresses, for each Defendant required to be served, and the United States Marshal's Service shall serve each Defendant with a copy of the complaint and a copy of this order by certified mail, return receipt requested; or • through counsel, request issuance of summons from the Clerk and serve each Defendant required to be served with a copy of the summons, complaint, and a copy of this order by certified mail, return receipt requested, if possible. See Fed. R. Civ. P. 4(e)(1) (permitting service pursuant to state law); Tex. R. Civ. P. 106(a)(2) (permitting service by certified or registered mail by a person authorized to serve by Rule 103); Tex. R. Civ. P. 103 (permitting service by 2 certified or registered mail by sheriff, constable, clerk, or any person authorized by law). For clarification, service is needed for the following individuals: (1) The Commissioner of Social Security, by and through the Office of the Regional Chief Counsel, Region VI, Social Security Administration, 1301 Young Street, Ste. A702, Dallas, TX 75202-5433, see 20 C.F.R. § 423.1; (2) William Barr, Attorney General of the United States, U.S. Department of Justice, 950 Pennsylvania Avenue, NW, Washington, DC 20530-0001, see Fed. R. Civ. P. 4(i)(1)(B); and (3) John F. Bash, United States Attorney for the Western District of Texas, 601 N.W. Loop 410, Suite 600, San Antonio, Texas 78216-5597, see Fed. R. Civ. P. 4(i)(1)(A). Local Court Rule CV-7 provides a seven day time period within which an opposing party may file a response to a nondispositive motion and a 14-day period within which an opposing party may file a response to a dispositive motion. Plaintiff Guerra is advised that if she desires to respond to any motion which Defendant may file, her response must be filed in a timely manner. That same rule (see Rule CV-7(c)) explains what qualifies as a dispositive motion for purposes of these deadlines. Failure to timely file a response can be interpreted as lack of opposition to the relief requested in a motion. Thus, the lack of a timely response could result in the dismissal of claims, or of Plaintiff Guerra's case, based on her failure to timely prosecute. Plaintiff Guerra is reminded that it is her responsibility to advise the United States District Clerk's Office and Defendant(s) of her current address and to promptly furnish change- of-address information. Failure to do so may be interpreted as failure to prosecute and may result in dismissal of the case. 3 Plaintiff Guerra is further advised of her responsibility under Rule 5 of the Federal Rules of Civil Procedure and Local Court Rule CV-5 to serve on counsel for Defendant a copy of any pleading that is filed that she files. Failure to do so could result in the imposition of sanctions. IT IS SO ORDERED. SIGNED this 25th day of June, 2019. RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE 4