United States District Court, D. Kansas
JOSEPH H. SCHROEDER II, Plaintiff,
CHEYENNE MANUFACTURING, Defendants.
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 Joseph H. Schroeder has also filed an Application
to Proceed Without Prepaying Fees or Costs (“IFP
application, ” Doc. 3, sealed) with a supporting
financial affidavit (Doc. 3-1). After review of
Plaintiff's motion, as well as his Complaint, the Court
GRANTS the IFP application (Doc. 3).
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 54
and single with no listed dependents. (Doc. 3, sealed, at
1-2.) Plaintiff is currently employed but does not indicate
his position. (Id., at 2.) He receives a modest
monthly wage as well as health benefits. (Id.) He
does not receive government benefits other than the
unemployment benefits he received after his employment with
Defendant was terminated. (Id., at 4-5.) Plaintiff
does not own real property, but owns a relatively new
automobile, with a significant monthly payment.
(Id., at 3-4.) He lists a no cash on hand.
(Id., at 4.) Plaintiff lists typical amounts for
monthly expenses, including rent, groceries, utilities, and
car insurance. (Id., at 5.) He also lists
significant student loans and “various pay day
loans.” (Id., at 6.)
Court finds that, based on the information provided,
Plaintiff's monthly expenses exceed his monthly income.
As such, 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.
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).
brings claims resulting from the termination of his
employment with Defendant, which is a Kansas corporation.
Plaintiff's Complaint, therefore, lacks a basis for
federal court diversity jurisdiction. Plaintiff contends
Defendant “told the state of Kansas Unemployment Office
that Plaintiff was terminated for not following a policy that
does not exit, [thus] they committed liable in an attempt to
cover up the actual reason for his termination, his
unwillingness to tolerate a possibly deadly situation.”
(Doc. 1, at ¶ 3.) Plaintiff's claim for damages is
in the amount of $7, 900 with an additional $500 for the
filing fee. Even assuming Plaintiff could establish diversity
jurisdiction, this amount is significantly below the amount
in controversy threshold for filing in federal court.
Further, Plaintiff does not appear to be raising a federal
question. The Court thus has serious concerns regarding the
viability of Plaintiff's claims.
Court will not, however, engage in further analysis necessary
to recommend dismissal to the District Court at this time
because Defendant has filed a Motion to Dismiss. (Doc. 4.)
That motion is currently pending before the District Court,
which will address these issues and rule accordingly.
THEREFORE ORDERED that Plaintiff's motion for IFP status
(Doc. 3) is GRANTED.