United States District Court, D. Kansas
MEMORANDUM & ORDER ON MOTION TO PROCEED WITHOUT
PREPAYMENT OF FEES, MOTION TO FILE CONVENTIONALLY, AND REPORT
& RECOMMENDATION FOR DISMISSAL
KENNETH G. GALE UNITED STATES MAGISTRATE JUDGE.
conjunction with his federal court Complaint (Doc. 1),
Plaintiff Cedric Greene has also filed a short form
Application to Proceed Without Prepaying Fees or Costs
(“IFP application, ” Doc. 3, sealed) as well as
motion requesting permission to conventionally file some CDs
with the Court Clerk (Doc. 4). 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 action. The Court also DENIES
without prejudice Plaintiff's motion to file
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 indicates he is
“not employed due to many medical reasons.” (Doc.
3, sealed, at 1.) He indicates he “obtains assistance
within the SSI program.” (Id.) Plaintiff
apparently owns no real property and does not own an
automobile. (Id., at 2.) Plaintiff lists no cash on
hand. (Id.) He pays a modest monthly amount for
housing through a government program and receives government
assistance for transportation and utilities. (Id.)
He indicates that his other monthly expenses
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. 1991).
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
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
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 construing the
allegations liberally, if the Court finds that he has failed
to state a claim upon which relief may be granted, the Court
is compelled to recommend that the action be dismissed.
brings a claim against Defendants alleging that he “was
the victim of a ‘very serious crime' that almost
ended his life.” (Doc. 1, at 4.) The crime at issue is
alleged to have occurred in Hot Springs, Arkansas.
(Id.) Thereafter, the person who is alleged to have
committed the crime returned to California “to avoid
being arrested . . . .” (Id.) Neither of the
Defendants in this case are the individual who allegedly
committed the crime against Plaintiff; rather, the Defendants
appear to be individuals involved in the subsequent Court
proceedings in Arkansas. (See id.) The Court finds
that Plaintiff has failed to state a claim for which relief
can be granted under the ...