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Smithback v. Smithback

United States District Court, D. Kansas

October 7, 2019

ROBERT NORMAN SMITHBACK, Plaintiff,
v.
WILLIAM ANDREW SMITHBACK, et al., Defendant.

          ORDER

          GWYNNE E. BIRZER UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Plaintiff Robert Norman Smithback's Motion to Proceed Without Prepayment of Fees (ECF No. 2, sealed) which the Court previously took under advisement, and his Motion to Reconsider his Motion for Appointment of Counsel (ECF No. 10). For the reasons set forth below, Plaintiff's Motion to Proceed in forma pauperis (ECF No. 2, sealed) is GRANTED, and Plaintiff's Motion to Reconsider his Motion for Appointment of Counsel (ECF No. 10) is DENIED.

         I. Background

         In his original Complaint, Plaintiff brings several state law claims against Defendants William Smithback and Terry Justice due to the transfer of ownership of a house in Wellington, Kansas. (ECF No. 1.) Both Defendants are citizens of Kansas. Plaintiff is incarcerated in Texas but did not allege his citizenship in his initial complaint. Upon review of Plaintiff's motion to proceed without prepayment of fees, and concurrent review of his Complaint, the undersigned U.S. Magistrate Judge recommended dismissal on the basis that the original Complaint does not establish that the parties are diverse, and Plaintiff seeks less than $75, 000. (Report and Recommendation, ECF No. 7.) The undersigned also took Plaintiff's motion for leave to proceed in forma pauperis under advisement and denied Plaintiff's motion for appointment of counsel in light of the recommendation of dismissal. (ECF No. 6.)

         Although Plaintiff's initial complaint was defective, Plaintiff sought leave to amend his Complaint as a response to the Recommendation. (Motion, ECF No. 9.) Given the request for amendment, Judge Broomes declined to adopt the recommendation of dismissal, and granted Plaintiff's request to amend his pleading. (Mem. and Order, ECF No. 13.) Plaintiff's Amended Complaint clarifies he was a citizen of Texas prior to his incarceration, and amends his demand for relief to include monetary damages in excess of $75, 000. (Am. Compl., ECF No. 14.) On the face of his Amended Complaint, diversity jurisdiction is satisfied. Therefore, the undersigned now reviews Plaintiff's pending motions.

         II. Motion for Leave to Proceed in forma pauperis (ECF No. 2, sealed)

         In its order taking the motion for leave to proceed without prepayment of fees under advisement, the Court required Plaintiff to submit an initial partial filing fee. (ECF No. 6.) Instead, Plaintiff timely filed a supplement to his motion, which this Court also construes as an objection to the order requiring an initial partial filing fee. (ECF No. 11, sealed.) Plaintiff's supplement, along with the attached statement of his inmate account, demonstrates his inmate account has minimal funds and he has no current source of income.

         This motion is governed by 28 U.S.C. § 1915(b). In Plaintiff's pleadings, he identifies himself as being incarcerated in Texas.[1] Because Plaintiff is a prisoner, he must pay the full filing fee in installment payments taken from his prison trust account when he “brings a civil action or files an appeal in forma pauperis[.]”[2] Pursuant to § 1915(b)(1), this Court must assess, and collect when funds exist, an initial partial filing fee calculated upon the greater of (1) the average monthly deposit in his account or (2) the average monthly balance in the account for the six-month period preceding the filing of the complaint. Thereafter, Plaintiff must make monthly payments of twenty percent of the preceding month's income in his institutional account.[3] However, a prisoner shall not be prohibited from bringing a civil action or appeal because he has no means to pay the initial partial filing fee.[4]

         Upon review of the information presented in Plaintiff's application (ECF No. 2, sealed) and his Supplemental Motion (with updated trust account statement) (ECF No. 11, sealed), it appears Plaintiff lacks funds to pay an initial partial filing fee. Therefore, the Court will grant leave to proceed in forma pauperis without assessing an initial fee under 28 U.S.C. § 1915(b)(1). Plaintiff remains obligated to pay the entire $400.00 filing fee in installments as funds become available.

         IT IS THEREFORE ORDERED that Plaintiff's Motion to Proceed in forma pauperis (ECF No. 2, sealed) is GRANTED. Notwithstanding this grant of leave, Plaintiff is required to pay the full amount of the filing fee and is hereby assessed $400.00. Plaintiff is required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of Plaintiff shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10.00 until the filing fees are paid.[5]

         The clerk is to transmit a copy of this order to Plaintiff, to the finance office at the institution where Plaintiff is currently confined, and to the Court's finance office. Additionally, because Plaintiff proceeds in forma pauperis, the clerk of the court shall take the appropriate steps to serve Defendants with the summons and Amended Complaint (ECF No. 14) as provided under 28 U.S.C. § 1915(d) and Fed.R.Civ.P. 4(c)(3).

         III. Motion for Reconsideration of Appointment of Counsel (ECF No. 10)

         In addition to taking the fee motion under advisement, on July 15, 2019, the Court denied Plaintiff's motion to appoint counsel to represent him in this case. (ECF No. 6.) This matter is now before the Court on Plaintiff's Motion to Reconsider his Motion for Appointment of Counsel. (ECF No. 10). For the reasons set forth below, Plaintiff's motion shall be DENIED.

         The grounds for requesting reconsideration of a non-dispositive ruling are relatively narrow. D. Kan. Rule 7.3 provides ...


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