Basurto v. Astrue, No. 1:2010cv04023 - Document 6 (N.D. Ill. 2010)
Court Description: WRITTEN Opinion: For the reasons set forth in the Statement section of this order, Juan Basurto's ("Basurto") application for leave to proceed in forma pauperis 4 and motion for appointment of counsel 5 are granted. The Clerk of Co urt is directed to docket Basurto's complaint without payment of the $350 filing fee and to appoint counsel. Basurto is to provide the U.S. Marshals Service with a copy of the complaint and a proper form for service on the named defendant. The Marshal is requested to serve the complaint and appropriate papers on the named defendant. The case is set for a report on status at 9:00 a.m. on August 17, 2010. Counsel for plaintiff and the defendant are requested to attend. (For further details see opinion). Signed by the Honorable James F. Holderman on 7/7/2010. Mailed notice.(jj, )
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Order Form (01/2005) United States District Court, Northern District of Illinois Name of Assigned Judge or Magistrate Judge James F. Holderman CASE NUMBER 10 C 4023 CASE TITLE Sitting Judge if Other than Assigned Judge DATE 7/7/2010 Juan Basurto vs. Michael Astrue, Commissioner Social Security DOCKET ENTRY TEXT For the reasons set forth in the Statement section of this order, Juan Basurto s ( Basurto ) application for leave to proceed in forma pauperis [4] and motion for appointment of counsel [5] are granted. The Clerk of Court is directed to docket Basurto s complaint without payment of the $350 filing fee and to appoint counsel. Basurto is to provide the U.S. Marshals Service with a copy of the complaint and a proper form for service on the named defendant. The Marshal is requested to serve the complaint and appropriate papers on the named defendant. The case is set for a report on status at 9:00 a.m. on August 17, 2010. Counsel for plaintiff and the defendant are requested to attend. O[ For further details see text below.] Notices mailed. STATEMENT On June 29, 2010, plaintiff Juan Basurto ( Basurto ) filed a complaint against defendant Michael Astrue, Commissioner of Social Security, seeking review of the denial of Basurto s requests for Supplemental Security Income disability benefits under Title XVI of the Social Security Act. Along with the complaint, Basurto filed an application for leave to proceed in forma pauperis ( IFP ) and a supporting financial affidavit (Dkt. No. 4), as well as a motion for appointment of counsel (Dkt. No. 5). Requests to proceed IFP are reviewed under 28 U.S.C. § 1915. To ensure that indigent litigants have meaningful access to the courts, § 1915 allows an indigent litigant to commence an action in federal court without paying the administrative costs of the lawsuit. Denton v. Hernandez, 504 U.S. 25, 27 (1992); Neitzke v. Williams, 490 U.S. 319, 324 (1988). However, the court must deny a request to proceed IFP if (1) the allegation of poverty is untrue; (2) the action is frivolous; (3) the action fails to state a claim; or (4) the action seeks monetary relief against an immune defendant. 28 U.S.C. § 1915(e)(2); see Hutchinson v. Spink, 126 F.3d 895, 899 (7th Cir. 1997) (recognizing the applicability of § 1915 to cases brought by non-prisoners). According to his affidavit, Basurto earns approximately $1200 a month, working only seven months a year at a Catholic Cemetery. (Dkt. No. 4 ¶ 2.) His wife contributes approximately $250 a month to their household income. (Id.) Neither Basurto nor his wife has more than $200 in a checking or savings account, and although Basurto s wife holds some common stocks, they are worth very little. (Id. ¶ 6.) Basurto s affidavit also identifies a single-family home held in his wife s name valued at $180,000 with a monthly mortgage payment of $1055. Based on these allegations, the court finds that Basurto is unable to pay the $350 civil filing fee in this case. Because the court has no reason to believe that Basurto s action is frivolous, 10C4023 Juan Basurto vs. Michael Astrue, Commissioner Social Security Page 1 of 2 STATEMENT fails to state a claim, or seeks monetary relief against an immune defendant, Basurto s application for leave to proceed in forma pauperis is granted. This court is also authorized to request an attorney to represent any person unable to afford counsel. 28 U.S.C. § 1915(e)(1). Although this decision is discretionary, the Seventh Circuit has directed the district court to follow a two-step approach, asking (1) has the indigent plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear competent to litigate it himself? Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). The first step in this analysis . . . is a threshold question the district court must ask before ruling on a § 1915(e)(1) motion. Id. at 655. If the plaintiff has not made reasonable efforts to obtain counsel on his own, the court must deny [the motion] out of hand. Farmer v. Haas, 990 F.2d 319, 321 (7th Cir. 1993) (citing Jackson v. County of McLean, 953 F.2d 1070, 1072-73 (7th Cir. 1992)). In his motion for appointment of counsel, Basurto lists several attorneys and organizations he has contacted to seek representation in this case. (See Dkt. No. 5 ¶ 2.) The court finds that these contacts demonstrate Basurto s reasonable efforts to obtain counsel. Basurto also states that his highest level of education is [s]ome high school and that he has limited ability to speak, write, and/or read English [d]ue to [d]isabilities. (Id. ¶ 6.) Based on Basurto s education and his communication challenges, the court believes that Basurto will have difficulty litigating this case by himself and that appointed counsel will greatly assist in bringing this case to a resolution. Accordingly, Basurto s motion for appointment of counsel is granted. 10C4023 Juan Basurto vs. Michael Astrue, Commissioner Social Security Page 2 of 2
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