United States District Court, D. Kansas
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.
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
Motion to Proceed Without Prepayment of Fees.
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
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 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.)
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.,
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.)
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.)
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).
Sufficiency of Complaint and Recommendation for
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.
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