United States District Court, D. Kansas
GALT VENTURES, INC. d/b/a SPEEDY CASH #60, Plaintiff,
MARQUES V. NOLAN, Defendant.
ORDER ON MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES
AND REPORT & RECOMMENDATION OF DISMISSAL
KENNETH G. GALE, UNITED STATES MAGISTRATE JUDGE.
se Defendant Marques V. Nolan removed the underlying
state court Petition to federal court. (Doc. 1, Notice of
Removal.) Thereafter, Defendant filed a Motion for Leave to
Proceed In Forma Pauperis (Doc. 3, sealed). After
review of Defendant's motion, as well as the removal
pleadings and state court Petition, the Court
GRANTS IFP application, but
RECOMMENDS that the District Court
dismiss Defendant's claims in their
Motion to Proceed In Forma Pauperis
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). “Proceeding in forma pauperis in a civil case
‘is a privilege, not a right - fundamental or
otherwise.'” Barnett v. Northwest School,
No. 00-2499, 2000 WL 1909625, at *1 (D. Kan. Dec. 26, 2000)
(quoting White v. Colorado, 157 F.3d 1226, 1233
(10th Cir. 1998)). The decision to grant or deny in forma
pauperis status lies within the sound discretion of the
court. Cabrera v. Horgas, No. 98-4231, 1999 WL
241783, at *1 (10th Cir. Apr. 23, 1999).
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, Defendant indicates he is 31
years old and single with no dependants. (Doc. 3-1, sealed,
at 1-2.) He lists a current employer but indicates
“$0” as his current monthly income.
(Id., at 2.) He owns no real property.
(Id., at 3.) He states that he is homeless, but
lives with an aunt “from time to time.”
(Id., at 5.) He states he does not own an
automobile, but lists a car with a modest present value and
no amount owed on it. (Id., at 4.)
lists no cash on hand and no government benefits.
(Id.) He has typical monthly expenses including
groceries, utilities, and automobile insurance.
(Id., at 5.) He also indicates that he has an
outstanding student loan of an undetermined amount.
(Id.) He has not filed for bankruptcy. (Id.
all of the information contained in his financial affidavit,
the Court finds that Defendant 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 Defendant leave
to proceed in forma pauperis. (Doc. 3, sealed.)
Sufficiency of Complaint.
party 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). Additionally, Fed.R.Civ.P. 12(h)(3)
requires the Court to dismiss the case “[i]f the court
determines at any time that it lacks subject-matter
jurisdiction.” King v. Huffman, No.
10-4152-JAR, 2010 WL 5463061, at *1 (D. Kan. Dec. 29, 2010).
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 pleading 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
(10thCir. 2007). In making this analysis, the
Court will accept as true all of Defendant's well-pleaded
facts and will draw all reasonable inferences from those
facts in his favor. See Moore v. Guthrie, 438 F.3d
1036, 1039 (10th Cir.2006). The Court will also liberally
construe his pleadings. See Jackson v. Integra Inc.,
952 F.2d 1260, 1261 (10th Cir.1991); Hall, 935 F.2d
at 1110. This does not mean, however, that the Court must
become an advocate for the pro se party.
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 party's allegations means
that “if the court can reasonably read the pleadings to
state a valid claim on which the [pro se party]
could prevail, it should do so despite [his] 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 [the
party'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, [the
pro se party] 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
a complaint generally need not plead detailed facts,
Fed.R.Civ.P. 8(a), it must give the answering party
sufficient notice of the claims asserted 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
Defendant's state court pleadings (Docs. 1, 4) and