United States District Court, D. Kansas
MEMORANDUM & ORDER ON MOTION TO PROCEED WITHOUT
PREPAYMENT OF FEES
KENNETH G. GALE UNITED STATES MAGISTRATE JUDGE.
conjunction with his federal court Complaint (Doc. 1),
Plaintiff Ronald Conner, who is representing himself pro
se, has filed a Motion to Proceed Without Prepayment of
Fees (“IFP application, ” Doc. 3, sealed) with a
supporting financial affidavit (Doc. 3-1, sealed). After
review of Plaintiff's motion, as well as the Complaint,
the Court GRANTS the IFP application.
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 indicates he 55 and
single with no dependents. (Doc. 3-1, sealed, at 1-2.) He
indicates that he is unemployed and lists no prior
employment. (Id., at 2-3.) He does not own real
property or an automobile. (Id., at 3-4.) He lists
no cash on hand. (Id., at 4.) He does receive food
stamp assistance from the government. (Id.) He lists
groceries and phone as his only expenses. (Id., at
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's request to proceed in
forma pauperis. (Doc. 3, sealed.)
Sufficiency of Complaint and Recommendation for Dismissal.
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 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 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, 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 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 ...