United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
April 11, 2017, Judge Sebelius denied plaintiff's Motion
for Leave to Proceed In Forma Pauperis. Doc. 4. As Judge
Sebelius explained, his Report and Recommendation provided
plaintiff with the right to file objections to the Report and
Recommendation under 28 U.S.C. § 636(b)(1) and Federal
Rule of Civil Procedure 72(a), within 14 days after service.
Doc. 4 at 3. He also advised plaintiff that failing to make a
timely objection to the Report and Recommendation would waive
any right to appellate review of the proposed findings of
fact, conclusions of law, and recommended disposition.
See Id. (explaining that “[i]f no objections
are timely filed, no appellate review will be allowed by any
court”). The Clerk sent a copy of the Report and
Recommendation to plaintiff by both regular and certified
mail. See Docket Entry for Doc. 4 (“Mailed to
pro se party pl[a]intiff Andrew Neighbors by certified mail.
Certified Tracking Number: 70102780000319280406.”).
of the Report and Recommendation was accomplished by
“mailing it to [plaintiff's] last known address-in
which event service [was] complete upon mailing.”
Fed.R.Civ.P. 5(b)(2)(C); ReVoal v. Brownback, No.
14-4076, 2014 WL 5321093, at *1 (D. Kan. Oct. 16, 2014).
“Mailing” occurred on April 11, 2017, when the
Clerk mailed the Report and Recommendation to plaintiff.
See Doc. 4. The time for plaintiff to file
objections to the Report and Recommendation thus expired
April 25, 2017.
April 12, 2017, plaintiff filed a document he titled
“Motion to be Exempt from Paying Filing Fees.”
Doc. 5. In this document, plaintiff argues, among other
things, that the court should exempt him from paying filing
fees for various reasons. Because plaintiff brings this
lawsuit pro se,  the court construes his filings liberally
and holds them to a less stringent standard than formal
pleadings drafted by lawyers. See Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991). But the court cannot
assume the role of plaintiff's advocate and
plaintiff's pro se status does not excuse him from
“the burden of alleging sufficient facts on which a
recognized legal claim could be based.” Id.
Nor is plaintiff relieved from complying with the rules of
the court or facing the consequences of noncompliance.
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994). The court thus construes plaintiff's Motion to be
Exempt from Paying Filing Fees liberally and understands it
to present a timely objection to Judge Sebelius's Report
Rule 72(a), the court may review a magistrate judge's
order denying a motion to proceed in forma pauperis.
Holton v. Virtual Inventories, Inc., No.
10-2518-WEB, 2010 WL 4628636, at *1 (D. Kan. Nov. 8, 2010).
But the court may set aside or modify such an order only if
it is “clearly erroneous or is contrary to law.”
Fed.R.Civ.P. 72(a). Under the clearly erroneous standard, the
district court does not conduct a de novo review of the
factual findings; instead, it must affirm a magistrate
judge's order unless a review of the entire evidence
leaves it “with the definite and firm conviction that a
mistake has been committed.” Ocelot Oil Corp. v.
Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988)
(quoting United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948)). In contrast, the contrary-to-law standard
permits the district court to conduct an independent review
of the magistrate judge's purely legal determinations.
Sprint Commc'ns Co. L.P. v. Vonage Holdings
Corp., 500 F.Supp.2d 1290, 1346 (D. Kan. 2007). A
magistrate judge's order is contrary to law if it
“fails to apply or misapplies relevant statutes, case
law or rules of procedure.” Walker v. Bd. of Cty.
Comm'rs of Sedgwick Cty., No. 09-1316-MLB, 2011 WL
2790203, at *2 (D. Kan. July 14, 2011) (citing Botta v.
Barnhart, 475 F.Supp.2d 174, 185 (E.D.N.Y. 2007)).
objection invokes only the contrary-to-law standard. In his
objection, plaintiff contends that Judge Sebelius's
Report and Recommendation is incorrect and the court should
grant his motion to proceed in forma pauperis because the
Supreme Court has held that “natural individuals,
” such as himself, are “entitled to relief [and]
entitled to free access to the court.” Doc. 5 at 3.
Plaintiff relies on the following phrase from Crandall v.
Nevada for support: “every citizen of the United
States from the most remote States or territories, is
entitled to free access, not only to the principal
departments established at Washington, but also to its
judicial tribunals and public offices in every State in the
Union . . . .” 73 U.S. 35, 48 (1867) (citation
omitted). But Crandall does not exempt all persons
from paying filing fees. Instead, it prohibits states from
imposing a tax on those wishing to enter their territories or
harbors. Id. at 49.
the rest of the passage that plaintiff quotes states:
“For all the great purposes for which the Federal
government was formed we are one people, with one common
country. We are all citizens of the United States, and as
members of the same community must have the right to pass and
repass through every part of it without interruption, as
freely as in our own States.”
Id. at 48-49 (The Passenger Cases, 48 U.S.
283, 492 (1849)). Crandall thus does not support
plaintiff's objection to Judge Sebelius's Report and
also cites several other cases to support his objection, but
they all suffer from the same problem as
Crandall-they do not permit litigants to proceed in
court without paying filing fees. After reviewing Judge
Sebelius's Report and Recommendation and the evidence
plaintiff submitted to him, the court concludes that his
decision was not contrary to law or clearly erroneous.
court notes, however, that plaintiff's financial
affidavit is unclear about his monthly income. Plaintiff
includes both a monthly income figure and weekly income
figure. When comparing these two figures, the monthly figure
does not add up to four times the weekly figure-or even four
and one-half times the weekly figure-as it should. It is
possible, then, that plaintiff's financial affidavit made
an error that contributed to the decision to deny
plaintiff's Motion for Leave to Proceed In Forma
Pauperis. But plaintiff has not objected to Judge
Sebelius's evaluation of the evidence, and, due to the
lack of clarity in plaintiff's financial affidavit, the
court is not left with the definite and firm conviction that
a mistake has been committed. The court thus concludes that
Judge Sebelius's Report and Recommendation is not clearly
erroneous. The court therefore accepts, adopts, and affirms
Judge Sebelius's Report and Recommendation. If plaintiff
chooses to renew his motion based on a clearer financial
affidavit, this Order does not forbid it.
final note: plaintiff's objection indicates that he
“will not be paying the filing fee to file his civil
actions in federal court.” Doc. 5 at 3. The court
cautions plaintiff. Failing to pay the filing fee may result
in dismissal of his action. See Cosby v. Meadors,
351 F.3d 1324, 1331- 33 (10th Cir. 2003) (affirming a
district court's order dismissing a plaintiff's
complaint for failure to pay the filing fee).
IS THEREFORE ORDERED THAT Andrew Neighbors's
Motion for Leave to Proceed In Forma Pauperis (Doc. 3) is
denied without prejudice and the court adopts Judge
Sebelius's Report and Recommendation (Doc. 4).
IS FURTHER ORDERED THAT Andrew Neighbor's Motion
to be Exempt from ...