United States District Court, D. Kansas
ORDER ON MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES
AND REPORT & RECOMMENDATION OF DISMISSAL
KENNETH G. GALE, UNITED STATES MAGISTRATE JUDGE
conjunction with his federal court Complaint (Doc. 1),
Plaintiff Marques Nolan has also filed a Motion for Leave to
Proceed In Forma Pauperis (Doc. 3, sealed). After
review of Plaintiff's motion, as well as his Complaint,
the Court GRANTS IFP application,
but RECOMMENDS that the District Court
dismiss his claims in their entirety.
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, Plaintiff, who does not state
his age, indicates he is 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.) Plaintiff has crossed out
“address” and listed an address for
“general care.” (Id., at 1.) He further
states that he “lives in his body & inhabits in the
Americas; domiciles near Wichita Territory.”
(Id., at 5.) He states he does not own an
automobile. (Id., at 4.)
lists no cash on hand and no government benefits.
(Id., at 4-5.) He has typical monthly expenses
including groceries, utilities, and automobile insurance
(although he indicates he does not own an automobile).
(Id., at 5.) He also indicates that he has an
outstanding student loan of an undetermined amount, which he
labels as “alleged.” (Id.) He has not
filed for bankruptcy. (Id. at 6.)
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.
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 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 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
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, [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 1974).
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