United States District Court, D. Kansas
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 DeWayne Anderson 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 42
and single with one dependent for whom he provides financial
support. (Doc. 3, sealed, at 1-2.) Plaintiff is currently
unemployed. (Id., at 2.) His only stated income is a
small amount of Social Security benefits each month.
(Id., at 4.) Plaintiff does not own real property,
but does own two modest automobiles resulting in a small
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.) Plaintiff
has not filed for bankruptcy. (Id., at 6.)
Court finds that, based on the information provided,
Plaintiff’s 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.
indicates his case is about “rights, retaliation, abuse
& neglect.” (Doc. 3, sealed, at 1.) In his form
Civil Complaint, he alleges that two of the individually
named Defendants “coerced [him] into illegal dumping,
” without any explanation as to what this alleged
activity entails. (Doc. 1, at 3.) He continues that he told
his “case manager” at Comcare, who “did
nothing, ” but then “started retaliating on
[Plaintiff] by getting other people to make false police
charges” against him. (Id.) He further alleges
that a call was made to the Wichita Police Department in