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Jones v. United States Copyright Office Commissioner of Copyrights

United States District Court, District of Kansas

July 25, 2014

JOSEPH LEE JONES, Plaintiff,
v.
UNITED STATES COPYRIGHT OFFICE COMMISSIONER OF COPYRIGHTS, Defendant.

REPORT AND RECOMMENDATION ON IFP MOTIONS AND FOR DISMISSAL OF COMPLAINT AND ORDER ON OTHER MOTIONS

David J. Waxse, U.S. Magistrate Judge

This matter is before the court upon plaintiff’s pro se civil complaint and other filings including his two motions to proceed in forma pauperis (IFP)(Docs. 3 & 11).[1] Having considered all materials filed by plaintiff, the court rules as follows.

I. IFP Motions

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 38 years old, single with no dependents, and unemployed. He does not own any real property or a vehicle and does not have cash on hand. On the other hand, he lists a significant monthly Social Security benefit and indicates that he has no monthly expenses including the typical ones such as rent, groceries, gas, and insurance. He lists one debt from a car accident in the amount of $20, 000 but no monthly payment on this debt. Plaintiff provides no explanation for how he addresses his food and shelter needs. He has never filed for bankruptcy.

Considering all the information in the financial affidavit, the court finds that plaintiff has not established that his access to the courts would be seriously impaired if he is not granted IFP status. His monthly income from Social Security exceeds his stated monthly expenses by at least 600 dollars. He has not shown that he is unable to pay the filing fee for this action of $400.00. Under these circumstances, the undersigned Magistrate Judge recommends that plaintiff’s motions for IFP status be denied.[2]

II. Screening of Complaint

It has long been established that sua sponte dismissal of a pro se complaint tendered for filing IFP is proper when the complaint is frivolous or malicious on its face. See Neitzke v. Williams, 490 U.S. 319, (1989);[3] Hall v. Bellmon, 935 F.2d 1106, 1108 (10th Cir. 1991); see also 28 U.S.C. § 1915(a)(1); Lewis v. Center Market, 378 Fed.Appx. 780, 784 (10th Cir. 2010)(unpublished)(citing 28 U.S.C. § 1915(a)); Lister, 408 F.3d at 1312 (“[I]n order to succeed on a motion to proceed IFP, the movant must show a financial inability to pay the required filing fees, as well as the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised in the action.”). Currently, 28 U.S.C. § 1915(e)(2)(B) authorizes dismissal of an IFP complaint if the action is (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted, or (3) seeks monetary relief against a defendant who is immune to such relief. A number of courts have held that this section authorizes dismissal of complaints filed IFP without regard to whether the plaintiff is a prisoner. See e.g., Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999)(“district courts have the power to screen complaints filed by all litigants, prisoners and non-prisoners alike”)(citing § 1915(e)(2)(B)); Michau v. Charleston County, S.C., 434 F.3d 725, 728 (4th Cir. 2006); Atamian v. Burns, 236 Fed.Appx. 753, 754 (3rd Cir. 2007)(“[T]he provisions of § 1915(e) apply to all in forma pauperis complaints, not simply those filed by prisoners.”).[4] The Tenth Circuit has held that its language in Lister, requiring the IFP movant to show a non-frivolous argument on the law and facts, did not create “an affirmative obligation on the part of the district court” to review claims prior to the IFP determination. Buchheit v. Green, 705 F.3d 1157, 1161 (10th Cir. 2012). Thus, the district court has discretion to screen a complaint filed IFP to determine if it “presents a reasoned, nonfrivolous argument on the law and facts” and the flexibility to do so either in conjunction with the IFP determination or at any time thereafter. In this case, it is recommended that the district court exercise its discretion to screen plaintiff’s complaint along with the IFP determination because the complaint on its face fails to state a plausible claim. See Lister, 408 F.3d at 1312.

“Factual allegations” in a complaint “must be enough to raise a right to relief above the speculative level” and must be a “‘plain statement’ possess[ing] enough heft to ‘sho[w] that the pleader is entitled to relief.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S 662, 678 (2009).

III. Nature of the Matter before the Court

This pro se civil action was filed by plaintiff while he was an inmate at the Larned Correctional Mental Health Facility.[5] In the caption, plaintiff names as defendant the “U.S. Copyright Office Commisoner (sic) of Copyrights.” He alleges in his complaint that he submitted a work entitled “A.I. Avatars” to the “U.S. Copyright Office, ” but “the copyright search box says nothing about A.I. Avatars.” He complains that he has been unable to get a satisfactory response from the U.S. Copyright Office by way of U.S. mail or telephone but is directed to their website, and has been unable to get a “form C.O.” from their website.

Plaintiff alleges that his claim arises under “U.S. Code Title 17” and that “the Copy Right Code says they have to respond, and mandatory deposit.” He asserts jurisdiction under 28 U.S.C. § 1331. He seeks an order requiring the U.S. Copyright Office “to respond, and/or say how much money (he) needs to pay for his copyright or give him his waive of fees or anything.”

IV. Discussion

Plaintiff does not present an adequate legal basis for his claim. He asserts “federal question jurisdiction, ” but the facts he alleges are not sufficient to state a claim under § 1331. Section 1331 provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A well-pleaded complaint shows federal-question jurisdiction by establishing “either that federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law.” Gilmore v. Weatherford, 694 F.3d 1160, 1170 (10thCir. 2012)(quoting Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 690 (2006)); Sac & Fox Nation of Oklahoma v. Cuomo, 193 F.3d 1162, 1165-66 (10th Cir. 1999), cert. denied, 530 U.S. 1229 (2000)(Federal question jurisdiction must appear on the face of the complaint.). The complaint must identify the statutory or constitutional provision under which the claim arises. Id. Plaintiff does not identify a particular statutory provision or statutory language upon which his claim is based. Instead, he references an entire Title or Code and simply contends that this action arises thereunder.[6] ...


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