United States District Court, D. Kansas
MEMORANDUM & ORDER ON MOTION TO PROCEED WITHOUT
PREPAYMENT OF FEES AND REPORT & RECOMMENDATION FOR
KENNETH G. GALE United States Magistrate Judge
conjunction with the federal court Complaint (Doc. 1),
Plaintiff Shay Dee Cook has also filed a Motion for Leave to
Proceed In Forma Pauperis with an accompanying
financial affidavit (Doc. 3, sealed). After review of
Plaintiff's motion, as well as the Complaint, the Court
GRANTS the IFP application but
recommends Plaintiff's claims be
dismissed for failure to state a viable federal cause of
Motion to Proceed IFP.
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, Plaintiff states an age of 37
years old and single with no dependants. (Doc. 4, sealed, at
2-3.) Plaintiff lists no current or prior employment.
(Id., at 3-4.) Plaintiff owns no real property and
does not own an automobile. (Id., at 4, 5.)
lists no cash on hand and no monthly government benefits.
(Id., at 5, 6.) Plaintiff also lists no expenses of
any kind. (Id., at 6.) Plaintiff has not previously
filed for bankruptcy. (Id. at 7.)
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 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
will also liberally construe the pleadings of a pro
se plaintiff. See Jackson v. Integra Inc., 952
F.2d 1260, 1261 (10th Cir.1991).
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
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).
complaint generally need not plead detailed facts,
Fed.R.Civ.P. 8(a), it must give the defendant 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) and ...