Rodriguez v. Commissioner of Social Security
| Jose Raul Rodriguez |
| Commissioner of Social Security |
| Social Security Administration |
| 3:2023cv01124 |
| August 23, 2023 |
| US District Court for the District of Connecticut |
| Maria E Garcia |
| Michael P Shea |
| Social Security: SSID Tit. XVI |
| 42 U.S.C. § 405 Review of HHS Decision (SSID) |
| None |
Docket Report
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| JUDICIAL PROCEEDINGS SURVEY - FOR COUNSEL ONLY: The following link to the confidential survey requires you to log into CM/ECF for SECURITY purposes. Once in CM/ECF you will be prompted for the case number. Although you are receiving this survey through CM/ECF, it is hosted on an independent website called SurveyMonkey. Once in SurveyMonkey, the survey is located in a secure account. The survey is not docketed and it is not sent directly to the judge. To ensure anonymity, completed surveys are held up to 90 days before they are sent to the judge for review. We hope you will take this opportunity to participate, please click on this link: https://ecf.ctd.uscourts.gov/cgi-bin/Dispatch.pl?survey (Johnson, D.) |
Filing 14
ORDER: On August 29, 2023, this Court issued a Recommended Ruling 11 denying #2 Plaintiffs Motion for Leave to Proceed In Forma Pauperis and directing Plaintiff either to object to the recommended ruling or to pay the filing fee by September 17, 2023. Plaintiff did not object or pay the filing fee by September 17, 2023. On September 22, 2023, 13 this Court gave Plaintiff additional time either to object to the denial of the Motion to Leave to Proceed In Forma Pauperis or to pay the filing fee. This Court ordered 13 Plaintiff to either object or pay by October 2, 2023 or risk dismissal. Plaintiff has not objected, paid the filing fee or contacted the Court since he filed the Motion for Leave to file In Forma Pauperis on August 23, 2023.Federal Rule of Civil Procedure 41(b) authorizes a district court to dismiss a complaint for failure to comply with a court order, treating the noncompliance as a failure to prosecute. Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995). Plaintiff has not complied with this Court's order to object or pay the filing fee and was warned of the risk of dismissal. Accordingly, pursuant to Fed. R. Civ. P. 41(b), this case is DISMISSED without prejudice, for failure to comply with a court order. The Clerk is directed to close this case. Signed by Michael P. Shea, Chief Judge on October 10, 2023.(Housman, L)
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| Set Deadlines: Dismissal due by 10/2/2023 (Johnson, D.) |
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Filing 13
ORDER: Plaintiff was notified that his motion for leave to file in forma pauperis was denied on 8/29/2023 11 . Plaintiff was ordered to object or pay the filing fee by 9/17/2023. Plaintiff has not responded or paid the filing fee. The Court will give the plaintiff a final opportunity: If the plaintiff has not objected or paid the filing fee (see ECF No. 11) by October 2, 2023, the Court will dismiss this case. Signed by Michael P. Shea, Chief Judge, on September 22, 2023.(Housman, L)
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| Filing 12 CERTIFICATE OF SERVICE by Commissioner of Social Security re #9 Notice of Appearance (Pollack, Kathryn) |
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Filing 11
ORDER Denying #2 Motion for Leave to Proceed In Forma Pauperis.Plaintiff moves for leave to proceed in forma pauperis in other words, he has asked the Court for permission to start a civil case without paying the customary filing fee. A federal law permits him to do so if, among other things, he submits an affidavit listing his assets and showing that he is unable to pay the fee. See 28 U.S.C. 1915(a)(1). To qualify as "unable to pay," plaintiff does not have to demonstrate absolute destitution, see Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d Cir. 1983) (per curiam), but he does need to show that "paying such fees would constitute a serious hardship." Fiebelkorn v. U.S., 77 Fed. Cl. 59, 62 (2007). The United States Supreme Court has said that a plaintiff makes a "sufficient" showing of inability to pay when his application demonstrates that he "cannot because of [his] poverty pay or give security for the costs and still be able to provide himself and his dependents with the necessities of life." Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). In this case, plaintiff's in forma pauperis affidavit states that he has a monthly income of $4,874.14, and has $1,000 in savings and $800.00 in a checking account. (ECF No. 2, at 3-4.) His monthly income exceeds his stated monthly expenses of $4,584.50. (id). Moreover, he is married but failed to provide information on his spouse's income, leaving the section blank. (Id., at 3). Here, Plaintiff's income places him well above the federal poverty guidelines for a two-person household and well above the income levels that ordinarily support in forma pauperis status. The Annual Update of the Poverty Guidelines promulgated by the Department of Health and Human Services most recently set the poverty guidelines for a family of two in the 48 contiguous States at $19,720. See https://www.federalregister.gov/documents/2022/01/21/2022-01166/annual-update-of-the-hhs-poverty-guidelines. Plaintiff's monthly income is $4,874.14, which approximates a yearly income of $58,488, or nearly three times the poverty threshold. See Hurley v. Ithaca City Sch. Dist. Bd. of Educ., No. 3:20-cv-0328DNHML, 2020 WL 1937561 (N.D.N.Y. Apr. 22, 2020) (denying IFP status where combined income of plaintiff and spouse was $30,784.00); see also Morales v. Rembisz, No. 3:20-cv-00192 (JCH), slip op. at 3-4 (D. Conn. Feb. 14, 2020) (expressing skepticism that a family of four with a gross annual income of $44,280 could qualify for in forma pauperis status, but deciding motion on other grounds). On the record before the Court, the undersigned is unable to conclude that this is a case in which paying the fee would present the plaintiff with a choice "between abandoning a potential meritorious claim or foregoing the necessities of life." Potnick, 701 F.2d at 244. I therefore recommend that the Motion for Leave to Proceed in forma pauperis be denied. ECF No. 2. This is a recommended ruling by a United States Magistrate Judge, to which the plaintiff may object under Rule 72 of the Federal Rules of Civil Procedure and Rule 72 of the Local Rules of Civil Procedure for the District of Connecticut. Any such objection must be filed within nineteen days of this order, that is, by September 17, 2023. See Fed. R. Civ. P. 72(b)(2) (objections to Magistrate Judge recommended rulings must be filed within fourteen days); D. Conn. L. Civ. R. 72.2(a) (adding five days for parties who, like this plaintiff, will receive notice of the recommended ruling by mail); Fed. R. Civ. P. 6(a)(1) (where, as here, a court-ordered time period would end on a Saturday, "the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday"). If the plaintiff fails to file a timely objection, he "may not thereafter assign as error a defect in the Magistrate Judge's" recommendation. D. Conn. L. Civ. R. 72.2(a). Failure to file a timely objection will also waive appellate review. Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).Plaintiff may also elect to pay the filing fee by September 17, 2023 to allow the case to proceed. Signed by Judge Maria E. Garcia on 8/29/23. (Esposito, A.)
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Filing 10
REMINDER: Standing ORDER on Social Security Appeals Signed by Judge Michael P. Shea on 8/28/2023. (Attachments: #1 Consent Form)(Anastasio, F.)
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| Filing 9 NOTICE of Appearance by Kathryn Pollack on behalf of Commissioner of Social Security (Pollack, Kathryn) |
| Filing 8 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. (Chartier, A) |
| Filing 7 NOTICE to Self-represented Parties. Signed by Clerk on 8/23/2023.(Chartier, A) |
| Filing 6 NOTICE to Counsel: Due to privacy restrictions on social security cases, absent both a consent to electronic notice and an approved motion for efiling privileges, counsel must mail paper copies to self-represented litigants. Signed by Clerk on 8/23/2023.(Chartier, A) |
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Filing 5
ELECTRONIC FILING ORDER FOR COUNSEL - PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER Signed by Judge Michael P. Shea on 8/23/2023.(Chartier, A)
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Filing 4
Standing ORDER Re: Social Security Cases. Signed by Judge Michael P. Shea on 8/23/2023.(Chartier, A)
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Filing 3
Standing ORDER on Social Security Appeals. Signed by Judge Michael P. Shea on 8/23/2023. (Attachments: #1 Consent Form)(Chartier, A)
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| Answer deadline updated for Commissioner of Social Security to 10/23/2023. (Chartier, A) |
| Filing 2 MOTION for Leave to Proceed in forma pauperis by Jose Raul Rodriguez. (Anastasio, F.) |
| Filing 1 COMPLAINT against Commissioner of Social Security, filed by Jose Raul Rodriguez. (Attachments: #1 SSA Letter, #2 Envelope 1, #3 Envelope 2)(Anastasio, F.) |
| Judge Michael P. Shea and Judge Maria E. Garcia added. (Freberg, B) |
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