Palmer v. Commissioner of Social Security

Western District of Texas, txwd-5:2019-cv-00215

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 ROBERT ALAN PALMER, § § Plaintiff, § 5-19-CV-00215-XR-RBF § vs. § § COMMISSIONER OF SOCIAL § SECURITY, § § 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 Robert Alan Palmer. 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 his motion, Plaintiff Palmer seeks leave to proceed in forma pauperis based on his 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 he is unable to pay these fees and 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 Palmer, the Court finds that Palmer's circumstances justify waiving the filing fee in this case. 1 IT IS ORDERED that Plaintiff Robert Alan Palmer's Motion to Proceed in forma pauperis, Dkt. No. 1, is GRANTED. IT IS FURTHER ORDERED that Plaintiff Palmer'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 Palmer. IT IS FURTHER ORDERED that, if not already accomplished, within ten (10) days of the date of this Order, Plaintiff Palmer 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 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) Jefferson Sessions, Attorney General of the United States, U.S. Department of Justice, 2 950 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 Palmer is advised that if he desires to respond to any motion which Defendant may file, his 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 Palmer's case, based on his failure to timely prosecute. Plaintiff Palmer is reminded that it is his responsibility to advise the United States District Clerk's Office and Defendant(s) of his 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. Plaintiff Palmer is further advised of his 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 he files. Failure to do so could result in the imposition of sanctions. IT IS SO ORDERED. SIGNED this 5th day of March, 2019. RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE 3