Markovitz v. Commissioner of Social Security
| James T Markovitz |
| Commissioner of Social Security |
| Social Security Administration |
| 3:2019cv01150 |
| July 25, 2019 |
| US District Court for the District of Connecticut |
| Sarah A L Merriam |
| Stefan R Underhill |
| Social Security: SSID Tit. XVI |
| 42 U.S.C. ยง 405 |
| None |
Docket Report
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Filing 13
REMINDER: Standing Order on Social Security Appeals Signed by Judge Stefan R Underhill on 9/5/2019. (Attachments: #1 Consent Form)(Anastasio, F.)
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| Filing 12 NOTICE of Appearance by Heather Sertial on behalf of Commissioner of Social Security (Sertial, Heather) |
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Filing 11
ORDER denying, without prejudice to re-filing, #8 MOTION to Appoint Counsel."A plaintiff in a civil case is not entitled to appointment of counsel on request and the Second Circuit repeatedly has cautioned district courts against the routine appointment of counsel." McCormick v. Comm'r of Soc. Sec., No. 3:16CV00931(AVC)(RAR), 2016 WL 11613848, at *1 (D. Conn. Nov. 1, 2016). The Second Circuit has "held that in determining whether to appoint counsel for an indigent litigant a district court judge should first consider whether the indigent's position seems likely to be of substance, then assess the litigant's competence to proceed pro se, the complexity of the issues, and additionally any special reason in that case why appointment of counsel would be more likely to lead to a just determination." Machadio v. Apfel, 276 F.3d 103, 10708 (2d Cir. 2002) (citation and quotation marks omitted). Here, the administrative record has not been filed, and "it is too soon for the court to determine whether [plaintiff's] claims pass the test of likely merit." McCormick, 2016 WL 11613848, at *1; see also Maldonado ex rel. Maldonado v. Apfel, 55 F. Supp. 2d 296, 307 (S.D.N.Y. 1999) ("Without a record, the merits cannot be evaluated.... And under Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986), there is not even a proper basis for the Court to appoint pro bono counsel because a court cannot determine whether the case seems likely to be of substance." (citation and quotation marks omitted)).Accordingly, plaintiff's #8 MOTION for Appointment of Counsel is DENIED, without prejudice.It is so ordered. Signed by Judge Sarah A. L. Merriam on 8/26/19. (Dowie, C)
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Filing 10
ORDER granting #9 Motion for Leave to Proceed in forma pauperis. Plaintiff has filed a motion seeking to proceed without prepayment of fees, costs or security therefor, which includes an affidavit regarding his current financial circumstances. See Doc. #9 -1. In plaintiff's affidavit, he states that he has been unemployed since April 2006. See id. at 3. Plaintiff is married and has two children, one of whom is a dependent minor. See id. at 2. The family's sole source of support is plaintiff's spouse's income, which totals $1,300 each week, which exactly covers the family's monthly expenses. See id. at 3-5. Plaintiff has limited assets, no cash on hand, and carries some debt. See id. at 4-5. At this stage, such allegations are sufficient to establish that plaintiff is unable to pay the ordinary filing fees required by the Court. See 28 U.S.C. 1915(a)(1). Accordingly, plaintiff's #9 Motion for Leave to Proceed in forma pauperis is GRANTED. It is so ordered. Signed by Judge Sarah A. L. Merriam on 8/26/19. (Dowie, C)
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| Filing 9 MOTION for Leave to Proceed In Forma Pauperis by James T Markovitz. Motions referred to Sarah A. L. Merriam(Bozek, M.) |
| Filing 8 MOTION for Appointment of Counsel by James T Markovitz. Motions referred to Sarah A. L. Merriam(Bozek, M.) |
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Filing 7
RECOMMENDED RULING. The Court recommends that plaintiff's #2 Motion for Leave to Proceed in forma pauperis be DENIED, without prejudice to re-filing. Plaintiff has filed a motion seeking to proceed without payment of fees and costs, which motion includes a statement relating to plaintiff's current financial circumstances. See Doc. #2 . That statement, however, is incomplete, leaving the Court unable to determine whether plaintiff qualifies for relief under 28 U.S.C. 1915.In his affidavit, plaintiff states that is unemployed, but that he is "unsure" or "forgot" when he last worked, or what his wages were at that time. See Doc. #2 at 3. Plaintiff states that his spouse is currently employed, reporting that her employment is in "Accounting?" and she has worked for the same employer for "20+ years?" Id. Plaintiff answers only "?" when prompted to provide his spouse's monthly or weekly income. Id. Plaintiff's affidavit also lists no expenses or monthly obligations, and provides no response to any of the inquiries concerning assets, other than an assertion that he owns no real property. See Doc. #2 at 3-5.In reviewing a motion to proceed in forma pauperis, the Court considers various factors including "the income of interested persons, such as spouses and parents, in evaluating the funds available to the movant." Monti v. McKeon, 600 F. Supp. 112, 114 (D. Conn. 1984), aff'd, 788 F.2d 1 (2d Cir. 1985). "The purpose of 28 U.S.C. 1915 is to insure that litigants will not be deprived of access to the judicial system because of their financial circumstances. If the plaintiff is supported by [his] spouse, and [his] spouse is financially able to pay the costs of this [action], it follows that the plaintiff's own lack of funds will not prevent [him] from gaining access to the courts. Where funds to pursue an [action] are readily available to a plaintiff, [he] should not be permitted to maintain an [action] at the taxpayers' expense." Id. The form affidavit filed by plaintiff does not provide the Court with sufficient information to determine that he is unable to pay the ordinary filing fees; plaintiff has thus failed to meet his burden under the statute. Accordingly, the Court recommends that plaintiff's #2 Motion for Leave to Proceed in forma pauperis be DENIED, without prejudice to re-filing. Plaintiff shall re-file his motion or pay the required filing fee on or before August 19, 2019, or this case may be dismissed. If plaintiff chooses to re-file his motion, he must complete all of the required information. While plaintiff may expressly state that certain questions on the affidavit form do not apply to him or his situation, he may not leave significant sections of the form blank or answered only with question marks.This is a recommended ruling. See Fed. R. Civ. P. 72(b)(1). Any objections to this recommended ruling must be filed with the Clerk of the Court within fourteen (14) days after the filing of this ruling. See Fed. R. Civ. P. 72(b)(2). "Any party receiving notice of an order or recommended ruling from the Clerk by mail shall have five (5) additional days to file any objection." D. Conn. L. Civ. R. 72.2(a). Plaintiff receives notice by mail. Accordingly, any objection must be filed on or before August 19, 2019. Failure to file an objection within this time frame will preclude appellate review. See 28 U.S.C. 636(b)(1); Rules 72, 6(a) and 6(d) of the Federal Rules of Civil Procedure; D. Conn. L. Civ. R. 72.2(a); Small v. Secretary of H.H.S. , 892 F.2d 15 (2d Cir. 1989) (per curiam); F.D.I.C. v. Hillcrest Assoc., 66 F.3d 566, 569 (2d Cir. 1995). Signed by Judge Sarah A. L. Merriam on 7/29/19. (Dowie, C)
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| Filing 6 Notice to Self-represented Parties. Signed by Clerk on 7/26/2019.(Bozek, M.) |
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Filing 5
ELECTRONIC FILING ORDER FOR COUNSEL - PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER. Signed by Judge Stefan R Underhill on 7/25/2019.(Bozek, M.)
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Filing 4
Standing Scheduling Order. Signed by Judge Stefan R Underhill on 7/25/2019.(Bozek, M.)
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Filing 3
Standing Order on Social Security Appeals. Signed by Judge Stefan R Underhill on 7/25/2019. (Attachments: #1 Consent Form)(Bozek, M.)
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| Filing 2 MOTION for Leave to Proceed In Forma Pauperis by James T Markovitz. Motions referred to Sarah A. L. Merriam(Bozek, M.) |
| Filing 1 COMPLAINT against Commissioner of Social Security, filed by James T Markovitz.(Bozek, M.) |
| Answer deadline updated for Commissioner of Social Security to 9/23/2019. (Bozek, M.) |
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