Muniz v. Kijakazi
| Angelica M. Muniz |
| Kilolo Kijakazi |
| Social Security Administration |
| 3:2023cv00290 |
| March 2, 2023 |
| US District Court for the District of Connecticut |
| Maria E Garcia |
| Janet C Hall |
| Michael P Shea |
| Social Security: SSID Tit. XVI |
| 42 U.S.C. § 1383 Review of SSA Decision SSID - SSI Disability Cases |
| None |
Docket Report
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| Filing 16 NOTICE by Kilolo Kijakazi of filing of Unofficial Text-searchable Copy of Certified Administrative Record (Attachments: #1 Exhibit Unofficial text-searchable copy of Certified Administrative Record)(Molinaro, John) |
| Filing 15 Social Security Transcripts. (Molinaro, John) |
Filing 14
ORDER OF TRANSFER. This case has been reassigned to Judge Janet C. Hall who was the presiding judge on related case 3:20-cv-00727-JCH Muniz v. Saul. Signed by Clerk on 4/20/2023.(Anastasio, F.)
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Filing 13
ORDER re 11 Recommended Order of Dismissal.In light of the payment of the filing fee, the recommended order of dismissal is withdrawn. Signed by Judge Maria E. Garcia on 4/4/23. (Esposito, A.)
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| Filing fee received from Law Offices of Ivan M. Katz: $ 402.00, receipt number 26683 (Chartier, AnnMarie) |
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Filing 12
ORDER denying #2 Motion for Leave to Proceed in forma pauperis for the reasons stated in the Notice of Insufficiency and Recommended Order of Dismissal. ECF No. 10, 11. Signed by Judge Maria E. Garcia on 3/31/23. (Esposito, A.)
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Filing 11
RECOMMENDED ORDER of DISMISSAL without prejudice. On March 8, 2023, the Court informed Plaintiff that her motion to proceed in forma pauperis was insufficient as her financial affidavit stated she receives $200 per month in SNAP benefits "but uses most of that to feed other members of the household", but she left blank all sections inquiring about her assets, income, or sources of income, making it impossible to determine if Plaintiff is unable to pay the filing fee because no one can possibly live on zero income. The court added that if Plaintiff has no income of her own, but is instead being supported by another person, she should list that support on her affidavit. Plaintiff was warned about these defects in her application, and was provided with an opportunity to cure them. The Notice of Insufficiency provided that "[i]f the plaintiff wishes to start this lawsuit without paying the filing fee, she is ORDERED to file another financial affidavit within twenty-one days of this order that is, by March 29, 2023." ECF No. 7. The Court added that "[i]n that affidavit, she must explain how she supports herself, and if she is supported by another person, she should explain whether that person can or cannot pay the filing fee. Id. Plaintiff failed to submit a second, more complete financial affidavit, and she therefore failed to demonstrate her entitlement to proceed in forma pauperis. To date, Plaintiff has not complied with the Court's order, nor has she filed a motion for extension of time to do so. Thus, the Court recommends DISMISSAL of this action without prejudice. This dismissal is without prejudice to Plaintiff filing a motion to reopen this case on or before April 14, 2023. Plaintiff's motion to reopen must explain the reasons for her non-compliance with the Court's earlier orders and attach a new motion to proceed in forma pauperis and an updated affidavit, in compliance with the Court's orders. Alternatively, Plaintiff may pay the $402.00 filing fee instead of filing a new motion to proceed in forma pauperis. If Plaintiff does not file a motion to reopen with a new motion to proceed in forma pauperis or pay the filing fee of $402.00 by April 14, 2023, the Court will convert this dismissal to one with prejudice. The Clerk is directed to close this case. See, e.g., Richardson v. Napoli, No. 9:09-CV-1440 (TJM) (DEP), 2010 WL 1235383 (N.D.N.Y. Mar. 30, 2010) (dismissing case where plaintiff neither demonstrated his entitlement to proceed in forma pauperis nor paid the filing fee). This is a recommended ruling by a magistrate judge. Fed. R. Civ. P. 72(b)(1); D. Conn. L. Civ. R. 72.1(C). If the plaintiff wishes to object to my recommendation, she must file that objection with the Clerk of the Court by April 14, 2023. See Fed. R. Civ. P. 72(b)(2) (objections to magistrate judge recommendations to be filed within fourteen days); D. Conn. L. Civ. R. 72.2(a) (allowing five additional days, as computed by Fed. R. Civ. P. 6, for persons who receive the recommendation from the Clerk of the Court via mail). If she does not do so, she may not thereafter assign as error any claimed defect in this recommended ruling. Id. Failure to file a timely objection will also preclude appellate review. See 28 U.S.C. 636(b)(1); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) ("[F]ailure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrates decision."); accord Impala v. U.S. Dep't of Justice, 670 F. Appx 32 (2d Cir. 2016) (summary order). Signed by Judge Maria E. Garcia on 3/31/22.(Esposito, A.)
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Filing 10
NOTICE of INSUFFICIENCY- re #2 MOTION for Leave to Proceed in forma pauperis. Plaintiff has moved for leave to proceed in forma pauperis - in other words, she has asked the Court for permission to start a civil case without paying the customary filing fee. A federal law permits her to do so if, among other things, she submits an affidavit listing her assets and showing that she is unable to pay the fee. See 28 U.S.C. 1915(a)(1). To help plaintiffs make this showing, the District of Connecticut provides a standard-form financial affidavit on its website, www.ctd.uscourts.gov. Here, Plaintiff filed an affidavit stating she receives $200 per month in SNAP benefits "but uses most of that to feed other members of the household", but she left blank all sections inquiring about her assets, income or sources of income. Courts have held that such affidavits do not establish an inability to pay the filing fee because no one can possibly live on zero income and have found that such affidavits must necessarily be incomplete. In the case of Pierre v. City of Rochester, for example, the court denied a motion for leave to proceed in forma pauperis when the plaintiff "claim[ed] that he ha[d] no assets and receive[d] no support from a spouse or from any other source," because he "offer[ed] no explanation for how he survives day-to-day or how his monthly expenses are paid." No. 16-CV-6428 (CJS), 2018 WL 10072449, at *1 (W.D.N.Y. Dec. 13, 2018). The court added that if a plaintiff has no income of his own, but is instead being supported by another person, he should list that support on his affidavit because "[i]n 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, parent, adult sibling or next friend." Id. (quoting Fridman v. City of N.Y., 195 F. Supp. 2d 534, 537 (S.D.N.Y. 2002)). If the plaintiff wishes to start this lawsuit without paying the filing fee, she is ORDERED to file another financial affidavit within twenty-one days of this order - that is, by March 29, 2023. In that affidavit, she must complete all sections to explain how she supports herself, and if she is supported by another person, she should explain whether that person can or cannot pay the filing fee. The Clerk of the Court is respectfully directed to mail a copy of this order to the plaintiff at her address of record, and to note on the docket that she has done so. Signed by Judge Maria E. Garcia on 3/8/23.(Esposito, A.)
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Filing 8
REMINDER: Standing ORDER on Social Security Appeals Signed by Judge Michael P. Shea on 3/7/2023. (Attachments: #1 Consent Form)(Anastasio, F.)
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| Filing 4 NOTICE of Appearance by John Molinaro on behalf of Kilolo Kijakazi (Molinaro, John) |
| Filing 9 Notice of New SSA Action: Electronic service of the complaint was made by the Clerk's Office upon the Social Security Office of General Counsel and the US Attorney's Office for the District of Connecticut. (Peterson, M) |
| Answer deadline updated for Kilolo Kijakazi to 5/1/2023. (Peterson, M) |
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Filing 7
ELECTRONIC FILING ORDER FOR COUNSEL - PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER Signed by Judge Michael P. Shea on 3/2/2023.(Barry, L)
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Filing 6
Standing ORDER Re: Social Security Cases Signed by Judge Michael P. Shea on 3/2/2023.(Barry, L)
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Filing 5
Standing ORDER on Social Security Appeals Signed by Judge Michael P. Shea on 3/2/2023. (Attachments: #1 Consent Form)(Barry, L)
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| Filing 3 NOTICE of Appearance by Ivan Michael Katz on behalf of Angelica M. Muniz (Anastasio, F.) |
| Filing 2 MOTION for Leave to Proceed in forma pauperis by Angelica M. Muniz. (Anastasio, F.) |
| Filing 1 COMPLAINT against Kilolo Kijakazi, filed by Angelica M. Muniz. (Attachments: #1 Civil Cover Sheet)(Anastasio, F.) |
| Judge Michael P. Shea and Judge Maria E. Garcia added. Motions referred to Maria E. Garcia (Oliver, T.) |
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