United States District Court, D. Kansas
June 6, 2014
MIKE ALLEN, Plaintiff,
WALDEN UNIVERSITY, et al., Defendant.
MEMORANDUM & ORDER ON IFP STATUS AND REPORT & RECOMMENDATION FOR DISMISSAL
KENNETH G. GALE, Magistrate Judge.
Plaintiff Mike Allen has filed a federal court Complaint, based on diversity jurisdiction, alleging national origin (Syrian) discrimination relating to grades he received in a graduate course. (Doc. 1.) In conjunction with his Complaint, Plaintiff filed an Application for Leave to File Action Without Prepayment of Fee, Costs, or Security ( IFP Application, Doc. 3, sealed), including an Affidavit of Financial Status. Having reviewed Plaintiff's motion, as well as his financial affidavit and Complaint, the Court GRANTS Plaintiff's motion, but RECOMMENDS that the District Court DISMISS Plaintiff's claims pursuant to 28 U.S.C. §1915(e)(2) for failure to state a claim for which relieve may be granted.
I. Motion to Proceed In Forma Pauperis
Under 28 U.S.C. § 1915(a), a federal court may authorize commencement of an action without prepayment of fees, costs, etc., by a person who lacks financial means. 28 U.S.C. § 1915(a). In so doing, the court considers the affidavit of financial status included with the application. See id.
There is a liberal policy toward permitting proceedings in forma pauperis when necessary to ensure that the courts are available to all citizens, not just those who can afford to pay. See generally, Yellen v. Cooper, 828 F.2d 1471 (10th Cir. 1987). In construing the application and affidavit, courts generally seek to compare an applicant's monthly expenses to monthly income. See Patillo v. N. Am. Van Lines, Inc., No. 02-2162, 2002 WL 1162684, at *1 (D.Kan. Apr. 15, 2002); Webb v. Cessna Aircraft, No. 00-2229, 2000 WL 1025575, at *1 (D.Kan. July 17, 2000) (denying motion because "Plaintiff is employed, with monthly income exceeding her monthly expenses by approximately $600.00").
In his supporting financial affidavit, Plaintiff indicates he is 50 years old and single with no dependants. (Doc. 3-1, sealed, at 1-2.) Plaintiff is currently unemployed, but previously worked security earning a moderate weekly wage. ( Id., at 2-3.) He lists no unemployment benefits or any other form of income or government assistance in the past twelve months. ( Id., at 3-5.) He does not own real property, but does own a vehicle with a small amount of stated value. ( Id., at 3-4.) He indicates a small amount of cash on hand. ( Id., at 4.) He enumerates the typical monthly expenses, including rent, certain utilities, telephone, and gas. ( Id., at 5.) He indicates has previously filed for bankruptcy. ( Id., at 6.)
Considering all of the information contained in the financial affidavit, the Court has concerns as to how Plaintiff is able to meet his monthly expenditures with no stated income or government assistance. Given the Court's recommendation of dismissal, however, the Court will not require Plaintiff to provide additional explanation of his financial situation. The undersigned Magistrate Judge GRANTS Plaintiff's motion for IFP status (Doc. 3).
II. Sufficiency of Complaint and Recommendation for Dismissal.
Pursuant to 28 U.S.C. §1915(e)(2), a court "shall dismiss" an in forma pauperis case "at any time if the court determines that... the action or appeal - (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." "When a plaintiff is proceeding in forma pauperis, a court has a duty to review the complaint to ensure a proper balance between these competing interests." Mitchell v. Deseret Health Care Facility , No. 13-1360-RDR-KGG, 2013 WL 5797609, at *1 (D. Kan. Sept. 30, 2013). The purpose of § 1915(e) is "the prevention of abusive or capricious litigation." Harris v. Campbell, 804 F.Supp. 153, 155 (D.Kan. 1992) (internal citation omitted) (discussing similar language contained in § 1915(d), prior to the 1996 amendment). Sua sponte dismissal under § 1915 is proper when the complaint clearly appears frivolous or malicious on its face. Hall v. Bellmon, 935 F.2d 1106, 1108 (10th Cir. 1991).
In determining whether dismissal is appropriate under § 1915(e)(2)(B), a plaintiff's complaint will be analyzed by the Court under the same sufficiency standard as a Rule 12(b)(6) Motion to Dismiss. See Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007). In making this analysis, the Court will accept as true all well-pleaded facts and will draw all reasonable inferences from those facts in favor of the plaintiff. See Moore v. Guthrie , 438 F.3d 1036, 1039 (10th Cir.2006). The Court will also liberally construe the pleadings of a pro se plaintiff. See Jackson v. Integra Inc., 952 F.2d 1260, 1261 (10th Cir.1991). This does not mean, however, that the Court must become an advocate for the pro se plaintiff. Hall, 935 F.2d at 1110; see also Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594 (1972). Liberally construing a pro se plaintiff's complaint means that "if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall, 935 F.2d at 1110.
A complaint "must set forth the grounds of plaintiff's entitlement to relief through more than labels, conclusions and a formulaic recitation of the elements of a cause of action." Fisher v. Lynch, 531 F.Supp.2d 1253, 1260 (D. Kan. Jan. 22, 2008) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007), and Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991) (holding that a plaintiff need not precisely state each element, but must plead minimal factual allegations on those material elements that must be proved)). "In other words, plaintiff must allege sufficient facts to state a claim which is plausible - rather than merely conceivable - on its face." Fisher, 531 F.Supp.2d at 1260 (citing Bell Atlantic Corp. v. Twombly, 127 S.Ct. at 1974). Factual allegations in the complaint must be enough to raise a right to relief "above the speculative level." Kay v. Bemis, 500 F.3d at 1218 (citing Bell Atlantic Corp. v. Twombly, 127 S.Ct. At 1965).
While a complaint generally need not plead detailed facts, Fed.R.Civ.P. 8(a), it must give the defendants sufficient notice of the claims asserted by the plaintiff so that they can provide an appropriate answer. Monroe v. Owens, Nos. 01-1186, 01-1189, 01-1207, 2002 WL 437964 (10th Cir. Mar. 21, 2002). Rule 8(a) requires three minimal pieces of information in order to provide such notice to the defendant: (1) the pleading should contain a short and plain statement of the claim showing the pleader is entitled to relief; (2) a short and plain statement of the grounds upon which the court's jurisdiction depends; and (3) the relief requested. Fed.R.Civ.P. 8(a). After reviewing Plaintiff's Complaint (Doc. 1) and construing the allegations liberally, if the Court finds that she has failed to state a claim upon which relief may be granted, the Court is compelled to recommend that the action be dismissed.
Plaintiff, who is a citizen of Kansas, brings his claims against Defendants who are citizen of Minnesota based on diversity jurisdiction. ( See Doc. 1, at 1-2.) In his form Complaint, he marks the line indicating that the case "arises because of violation of the civil or equal rights, privileges, or immunities accorded to citizens of, or persons within the jurisdiction of, the United States (28 U.S.C. § 1343)." ( Id., at 3.) He also marks the line for "other grounds, " contending that he is the victim of national origin discrimination. ( Id. )
The factual basis for Plaintiff's claim, however, is suspect at best. He contends that he was given an incorrect grade on certain coursework by officials of Defendant Walden University, a private, for-profit, on-line university, which resulted in him being removed from the program. ( Id., at 3-4; Doc. 4, at 1.) Plaintiff also contends that Defendant blocked his attempts to appeal the grade at issue. ( Id. ) Plaintiff has not, however, plead that Defendant is an agency of a State (subject to the Fourteenth Amendment of the United States Constitution), an agency of the United States government (subject to the Fifth Amendment), his employer (subject to 42 U.S.C. § 2000e), or a federally-assisted program (subject to 42 U.S.C. § 2000d).
The Court sympathizes with Plaintiff that, if true, this would be a highly frustrating and disheartening situation. Even so, Plaintiff has not plead a viable cause of action for national origin discrimination. The Court finds that Plaintiff has failed to state a claim on which relief may be granted, requiring a recommendation to the District Court of Plaintiff's claims pursuant to 28 U.S.C. §1915(e)(2). This Court RECOMMENDS that the case be DISMISSED.
IT IS THEREFORE ORDERED that Plaintiff's motion for IFP status (Doc. 3) is GRANTED.
IT IS RECOMMENDED to the District Court that Plaintiff's Complaint be DISMISSED for the failure to state a claim on which relief may be granted.
IT IS THEREFORE ORDERED that a copy of the recommendation shall be sent to Plaintiff via certified mail. Pursuant to 28 U.S.C. §636(b)(1), Fed.R.Civ.P. 72, and D.Kan. Rule 72.1.4, Plaintiff shall have ten days after service of a copy of these proposed findings and recommendations to serve and file with the U.S. District Judge assigned to the case, his written objections to the findings of fact, conclusions of law, or recommendations of the undersigned Magistrate Judge. Plaintiff's failure to file such written, specific objections within the ten-day period will bar appellate review of the proposed findings of fact, conclusions of law, and the recommended disposition.
IT IS SO ORDERED.