United States District Court, D. Kansas
ORDER ON MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES
AND MOTION TO APPOINT COUNSEL, AND REPORT &
RECOMMENDATION OF DISMISSAL
KENNETH G. GALE United States Magistrate Judge.
conjunction with his federal court Complaint, pro se
Plaintiff Jamie Stanton has filed a Motion for Leave to
Proceed In Forma Pauperis (Doc. 3, sealed) as well
as a Motion to Appoint Counsel (Doc. 4). Having reviewed
Plaintiff's motions, as well as his Complaint, the Court
GRANTS IFP application, DENIES, without prejudice,
Plaintiff's request for counsel, and RECOMMENDS that the
District Court dismiss Plaintiff's claims in their
Motion to Proceed
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.
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”).
supporting financial affidavit, Plaintiff indicates he is 53
years old and divorced with one dependant child for whom he
provides certain monthly financial assistance. (Doc. 3-1,
sealed, at 1-2.) He is currently employed making a minimal
weekly wage. He owns no real property. (Id., at 3.)
He does own an automobile, but indicates it was stolen in
December. (Id., at 4.) He continues to make payments
on the automobile. (Id.)
lists a small amount of cash on hand. (Id.) He
received weekly unemployment benefits until February 10,
2017, and states that he is “pending for medical”
benefits through the government. (Id.) He filed for
bankruptcy after his divorce. (Id. at 6.)
lists standard monthly bills, including rent, groceries,
utilities, and auto insurance. (Id., at 5.) He also
owes a substantial amount of past child support and
significant student loans. (Id., at 5-6.)
all of the information contained in his financial affidavit,
the Court finds that Plaintiff has established that his
access to the Court would be significantly limited absent the
ability to file this action without payment of fees and
costs. The Court thus GRANTS Plaintiff leave to proceed
in forma pauperis. (Doc. 3, sealed.)
Sufficiency of Complaint.
plaintiff is proceeding in forma pauperis, a court
has a duty to review the complaint to ensure a proper balance
between these competing interests. 28 U.S.C.
§1915(e)(2). Section 1915 of Title 28, United States
Code, requires dismissal of a case filed under that section
if the court determines that the action (1) is frivolous or
malicious, (2) fails to state a claim upon which relief may
be granted or (3) seeks monetary relief from a defendant who
is immune from suit. 28 U.S.C.
§1915(e)(2). 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.
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.
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).
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) ...