IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

TERRY JAMES SHAFER, )

 )

Plaintiff, )

 )

v. ) NO. 3:14-CV-1785

 )

CAROLYN W. COLVIN, ACTING )

COMMISSIONER OF SOCIAL ) 

SECURITY, )

 )

Defendant. )

OPINION AND ORDER

This matter is before the Court on the Complaint (DE #1) and

the Application to Proceed in District Court Without Prepaying Fees

or Costs (DE #2), both filed by Plaintiff, Terry James Shafer, on

August 12, 2014. For the reasons set forth below, the Court:

(1) DENIES the Application to Proceed in District Court

Without Prepaying Fees or Costs (DE #2);

(3) GRANTS Plaintiff, Terry James Shafer, until November 3,

2014, to pay the $400.00 filing fee; and 

(3) CAUTIONS Plaintiff, Terry James Shafer, that if he does

not respond by that date, this case will be dismissed without

further notice for non-payment of the filing fee.
BACKGROUND

Plaintiff, Terry James Shafer (“Shafer”), initiated this case

by filing a complaint pursuant to 42 U.S.C. section 405(g) on

August 12, 2014. (DE #1.) That same day, Shafer also filed his

application seeking to proceed in forma pauperis (“IFP”). (DE #2.) 

In his complaint, Shafer states that his application for social

security disability benefits was denied by the Appeals Council; he

has attached the Appeals Council Notice, dated May 15, 2014, to the

complaint. (Id. at 4-7.) The complaint also states that, “[o]n

July 13, 2014, a request for an extension to file in federal court

was made to the Appeals Council. . . . This request is still

pending.” (Id. at 1.) Shafer has attached the letter requesting

an extension from the Appeals Council to the complaint as well as

fax coversheets showing that he faxed the letter to the Appeals

Council on July 14, 2014. (Id. at 9-11.) The complaint states

that Shafer is disabled and that the “conclusions and findings of

fact of the Defendant are not supported by substantial evidence and

are contrary to law and regulation.” (Id. at 1-2.) In his IFP

application, Shafer states that he is not employed but receives

income of $1,758 from VA disability payments. (DE #2, p.1.) He

states that he has $2,500 in a checking account and owns a vehicle

valued at $8,000. (Id. at 2.) He lists expenses totaling $1,204. 

(Id.)

 

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ANALYSIS

The IFP statute, 28 U.S.C. section 1915, allows an indigent

plaintiff to commence a civil action without prepaying the

administrative costs (e.g. filing fee) of the lawsuit. See 28

U.S.C. § 1915(a)(1); see also Denton v. Hernandez, 504 U.S. 25, 27

(1992). When presented with an IFP application, the district court

makes two determinations: (1) whether the suit has sufficient

merit; and (2) whether the plaintiff’s poverty level justifies IFP

status. See Denton, 504 U.S. at 27; Smith-Bey v. Hosp. Adm’r, 841

F.2d 751, 757 (7th Cir. 1988). The screening court must deny the

IFP application and dismiss the complaint if (a) the allegation of

poverty is untrue, (b) the action is frivolous or malicious, (c)

the action fails to state a claim upon which relief can be granted,

or (d) the action seeks monetary relief against a defendant who is

immune from such relief. 28 U.S.C. § 1915(e)(2).

An action is frivolous if “it lacks an arguable basis either

in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). 

A claim that “no reasonable person could suppose to have any merit”

is considered frivolous. Lee v. Clinton, 209 F.3d 1025, 1026 (7th

Cir. 2000). Additionally, when a valid affirmative defense is

clear and unmistakable from the face of a complaint, the screening

court may dismiss the suit as frivolous before requiring a

defendant to answer. Walker v. Thompson, 288 F.3d 1005, 1009-10

(7th Cir. 2002).

Federal civil actions brought to review a final decision of

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the Commissioner in Social Security cases are subject to a sixty

(60) day statute of limitations. See 42 U.S.C. § 405(g) (“Any

individual, after any final decision of the Commissioner . . . to

which he was a party . . . may obtain a review of such decision by

a civil action commenced within sixty days after the mailing to him

of notice of such decision or within such further time as the

Commissioner . . . may allow.”); see also Bowen v. City of New

York, 476 U.S. 467, 479-81 (1986). Regulations provide that “the

date of receipt of notice of denial of request for review . . .

shall be presumed to be 5 days after the date of such notice,

unless there is a reasonable showing to the contrary.” 20 C.F.R.

§ 422.210(c). A party may seek an extension of time to file an

action in Federal court, but that written request must be filed

with and granted by the Appeals Council first in order to validly

extend the deadline. See 20 C.F.R. § 404.982.1 In certain rare

circumstances, equitable tolling can excuse a late filing but only

when the plaintiff can show: “(1) that he has been pursuing his

rights diligently, and (2) that some extraordinary circumstance

stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).2

1

 The time period will only be extended by the Appeals Council if good

cause to do so has been shown by the plaintiff. See 20 C.F.R. § 404.911.

 

2

 For example, the Supreme Court has stated that equitable tolling may

be appropriate “where the claimant has actively pursued his judicial remedies

by filing a defective pleading during the statutory period, or where the

complainant has been induced or tricked by his adversary’s misconduct into

allowing the filing deadline to pass” but not in situations where “the

claimant failed to exercise due diligence in preserving his legal rights.” 

Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (1990) (internal footnotes and

citations omitted). 

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Here, as to the financial prong, Shafer indicates that he has

no dependents and an income from VA disability payments of $1,758

per month. The annualized value of that income stream is $21,096. 

The poverty guideline for a family of one living in Indiana is

$11,670 per year. HHS Poverty Guidelines, 79 Fed. Reg. 3593

(January 22, 2014). Shafer’s income is significantly more than the

poverty level. Therefore the IFP application will be DENIED, and

he will be required to pay the filing fee before proceeding with

this lawsuit. 

Additionally, the Court notes that it is not clear whether the

complaint has been timely filed. Because the Appeals Council

Notice is dated May 15, 2014, Shafer had until July 21, 2014,3 to

file his complaint in federal court. He did not do so until August

12, 2014. Therefore, it appears that his complaint is untimely

unless the Appeals Council has agreed to extend the deadline for

filing. Shafer has indicated that the request for an extension is

still “pending.” While this Court is without authority to proceed

unless or until the request has been approved, it is not clear and

unmistakable from the face of the complaint that the action is

untimely (i.e. the status of the request may have since changed). 

Therefore, the Court declines to dismiss the action as frivolous at

this time. 

3

 Date of receipt of the notice is presumed to have been May 20, 2014. 

Sixty days after that date was July 19, 2014; however, as that date fell on a

Saturday, filing was required by the next business day of July 21, 2014. 

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CONCLUSION

For the reasons set forth above, the Court:

(1) DENIES the Application to Proceed in District Court

Without Prepaying Fees or Costs (DE #2);

(3) GRANTS Plaintiff, Terry James Shafer, until November 3,

2014, to pay the $400.00 filing fee; and 

(3) CAUTIONS Plaintiff, Terry James Shafer, that if he does

not respond by that date, this case will be dismissed without

further notice for non-payment of the filing fee.

DATED: October 3, 2014 /S/RUDY LOZANO, Judge

United States District Court

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