United States District Court, D. Kansas
JOSEPH H. SCHROEDER II, Plaintiff,
NEBRASKA FURNITURE MART, Defendant.
MEMORANDUM & ORDER ON MOTION TO PROCEED WITHOUT
PREPAYMENT OF FEES AND REPORT & RECOMMENDATION FOR
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 the Complaint, the Court
GRANTS the IFP application (Doc. 3) but
recommends Plaintiff's claims be
dismissed for failure to state a viable
federal cause of action.
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 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 as well as
“various pay day loans.” (Id., at 6.)
Plaintiff has previously filed for bankruptcy. (Id.)
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 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 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 construing the allegations liberally, if the
Court finds that she has failed to state a claim upon which
relief may be granted, the Court is compelled to recommend
that the action be dismissed.
contends he has been granted Power of Attorney by “an
associate, Jenna Gallegos, ” to “resolv[e] her
bill” with Defendant Nebraska Furniture Mart
(“NFM”). (Doc. 1, at ¶ 1.) He contends that
NFM refused to acknowledge his Power of Attorney to act on
behalf of Plaintiff. (Id., at ¶ 2.) He further,
and somewhat contradictorily, contends that NFM
“repeatedly called him on his business line to try and
collect the balance [on Ms. Gallegos's account] even
after he advised them that if they would not honor the POA,
told over and over not to contact him.” (Id.,
at ¶ 3.) Plaintiff thus contends Defendant is in
violation of the Fair Debt ...