Baker v. Commissioner of Social Security
Plaintiff: Sandra Baker
Defendant: Commissioner of Social Security
Interested Party: Social Security Administration
Case Number: 3:2020cv00063
Filed: January 14, 2020
Court: US District Court for the District of Connecticut
Presiding Judge: Sarah A L Merriam
Referring Judge: Stefan R Underhill
Nature of Suit: Social Security: SSID Tit. XVI
Cause of Action: 42:405
Jury Demanded By: None
Docket Report

This docket was last retrieved on January 15, 2020. A more recent docket listing may be available from PACER.

Date Filed Document Text
January 15, 2020 Opinion or Order Filing 10 ORDER denying, without prejudice, #4 MOTION to Appoint Counsel.Plaintiff seeks appointment of pro bono counsel in this action pursuant to 28 U.S.C. 1915. The Second Circuit has cautioned district courts against the routine appointment of counsel and has reiterated the importance of requiring a pro se litigant seeking counsel to demonstrate the likely merit of her claims before counsel is appointed. See, e.g., Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 203-04 (2d Cir. 2003); Hendricks v. Coughlin, 114 F.3d 390, 393 (2d Cir. 1997). In evaluating a self-represented litigant's motion to appoint counsel, the Court is required to consider "the merits of plaintiff's case, the plaintiff's ability to pay for private counsel, [her] efforts to obtain a lawyer, the availability of counsel, and the plaintiff's ability to gather the facts and deal with the issues if unassisted by counsel." Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989). Here, because the administrative transcript has not yet been filed, and where the #1 Complaint provides little detail, plaintiff has failed to make a threshold showing of likelihood of merit. See 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)).The Second Circuit has also made clear that before appointment of counsel may be considered, the movant must demonstrate that she is unable to obtain counsel on her own. See Saviano v. Local 32B-32J, 75 F. App'x 58, 59 (2d Cir. 2003). Here, plaintiff's family appears to have substantial monthly income and assets. For all of these reasons, plaintiff's #4 Motion to Appoint Counsel is DENIED, without prejudice. Plaintiff may re-file her motion after the Administrative Record has been filed, but is cautioned to carefully consider the financial requirements applicable to appointments of pro bono counsel. It is so ordered.Signed by Judge Sarah A. L. Merriam on 1/15/2020. (Scholfield, D.)
January 15, 2020 Opinion or Order Filing 9 RECOMMENDED RULING denying #2 MOTION for Leave to Proceed in forma pauperis filed by Sandra Baker.A party seeking to proceed without payment of fees and costs bears the burden of establishing that she "is unable to pay such fees[.]" 28 U.S.C. 1915(a)(1). "In assessing an application to proceed in forma pauperis, a court may consider the resources that the applicant has or can get from those who ordinarily provide the applicant with the necessities of life, such as from a spouse[.] If it appears that an applicant's access to court has not been blocked by [her] financial condition, rather that [s]he is merely in the position of having to weigh the financial constraints posed if [s]he pursues [her] position against the merits of [her] case, then a court properly exercises its discretion to deny the application." Fridman v. City of New York, 195 F. Supp. 2d 534, 537 (S.D.N.Y. 2002) (citations and quotation marks omitted).Plaintiff asserts that she has not been employed for over a decade and has no independent income; her husband, however, earns more than $10,000 per month. See Doc. #2 at 3. The application also states that the family has $5,000 in the bank. See id. at 4. Given these circumstances, the Court finds that plaintiff has sufficient resources to pay the required filing fee.In addition, plaintiff's motion is not signed under the penalties of perjury. 28 U.S.C. 1915 provides that the Court "may authorize the commencement" of an action "without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor." 28 U.S.C. 1915(a)(1). The requirement of a sworn statement is an essential part of the statute. See, e.g., United States v. Copen, 378 F. Supp. 99, 103 (S.D.N.Y. 1974) ("Leave to proceed in forma pauperis may be obtainable only upon submission by the party of an affidavit made as required by that statute.").Accordingly, the Court recommends that plaintiff's #2 Motion for Leave to Proceed in forma pauperis be DENIED. Plaintiff shall pay the required filing fee on or before February 3, 2020 or her case may be dismissed. This is a recommended ruling. See Fed. R. Civ. P. 72(b)(1). Ordinarily, any objections to a recommended ruling must be filed with the Clerk of the Court within fourteen (14) days after the filing of the ruling. See Fed. R. Civ. P. 72(b)(2). However, "[a]ny 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 February 3, 2020. 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 1/15/2020. (Scholfield, D.)
January 15, 2020 Filing 8 Notice to Self-represented Parties. Signed by Clerk on 1/15/2020.(Bozek, M.)
January 14, 2020 Answer deadline updated for Commissioner of Social Security to 3/14/2020. (Bozek, M.)
January 14, 2020 Opinion or Order Filing 7 ELECTRONIC FILING ORDER FOR COUNSEL - PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER. Signed by Judge Stefan R. Underhill on 1/14/2020.(Bozek, M.)
January 14, 2020 Opinion or Order Filing 6 Standing Scheduling Order. Signed by Judge Stefan R. Underhill on 1/14/2020.(Bozek, M.)
January 14, 2020 Opinion or Order Filing 5 Standing Order on Social Security Appeals. Signed by Judge Stefan R. Underhill on 1/14/2019. (Attachments: #1 Consent Form)(Bozek, M.)
January 14, 2020 Filing 4 MOTION for Appointment of Counsel by Sandra Baker. Motions referred to Sarah A. L. Merriam(Bozek, M.)
January 14, 2020 Filing 3 Appearance Self Represented Party by Sandra Baker. (Bozek, M.)
January 14, 2020 Filing 2 MOTION for Leave to Proceed In Forma Pauperis by Sandra Baker. Motions referred to Sarah A. L. Merriam(Bozek, M.)
January 14, 2020 Filing 1 COMPLAINT against Commissioner of Social Security, filed by Sandra Baker. (Attachments: #1 Supplement)(Bozek, M.)

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Plaintiff: Sandra Baker
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Defendant: Commissioner of Social Security
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Interested party: Social Security Administration
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