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Marshall v. Benjamin

United States District Court, D. Kansas

May 23, 2017

KRYSTAL MARSHALL and MILTON DAVISON, Plaintiffs,
v.
BREAKING BENJAMIN, et al., Defendants.

          MEMORANDUM & ORDER ON MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES and REPORT & RECOMMENDATION FOR DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS

          KENNETH G. GALE United States Magistrate Judge.

         Plaintiffs' federal court Complaint, filed jointly and pro se, brings various claims against the Defendants including disability discrimination, battery, false arrest, civil conspiracy, outrage, and violations of their constitutional rights. (See generally Doc. 1.) In conjunction with their federal court Complaint, Plaintiffs have each filed a Motion to Proceed Without Prepayment of Fees (IFP Applications, Docs. 3 and 4, sealed), with accompanying Affidavits of Financial Status (Docs. 3-1 and 4-1, sealed). Having reviewed Plaintiffs' motion, as well as their accompanying financial affidavits and joint Complaint, the Court GRANTS both Plaintiffs' motions for IFP status. The Court does, however, recommend that Plaintiffs' claims against certain Defendants be dismissed for failure to state a viable federal cause of action.

         DISCUSSION

         I. Motion to Proceed Without Prepayment of Fees.

         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 her supporting financial affidavit, Plaintiff Krystal Marshall indicates she is 40 years old and single with no dependents. (Doc. 3-1, sealed, at 1-2.) She is currently employed as the caretaker for her co-Plaintiff, earning a small monthly income. (Id., at 2.) She lists no other sources of income. She owns no real property, but does own modest automobile outright, which is also titled in the name of her co-Plaintiff. (Id., at 3-4.)

         Plaintiff Marshall lists significant monthly monthly expenses, including rent, groceries, gas, insurance, telephone, and utilities, which far exceed her stated monthly income. (Id., at 5.) Given their shared address, the Court surmises the amount listed for rent is for both Plaintiffs jointly. She has never filed for bankruptcy. (Id., at 6.)

         Plaintiff Milton Davison indicates he is 65 years old and separated with no dependents; he does not know the location of his estranged spouse. (Doc. 4-1, sealed, at 1-2.) He is not employed but receives month Social Security benefits. (Id., at 2, 4.) He lists no other sources of income. He owns no real property, but does own the aforementioned automobile outright. (Id., at 3-4.)

         Plaintiff Davison lists typical monthly expenses in virtually the same amounts as his co-Plaintiff. (Compare Doc. 3-1, at 5 to Doc. 4-1, at 5.) The Court surmises they are shared expenses, particularly given Plaintiff Marshall's limited income. Plaintiff Davison has never filed for bankruptcy. (Id., at 6.)

         Considering all of the information contained in the financial affidavit, the Court finds that Plaintiffs have established that their access to the Court would be significantly limited absent the ability to file this action without payment of fees and costs. The Court GRANTS Plaintiffs leave to proceed in forma pauperis (Doc. 3, sealed; Doc. 4, sealed).

         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 ...


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