United States District Court, D. Kansas
E. BIRZER UNITED STATES MAGISTRATE JUDGE.
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.
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.)
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.
Motion for Leave to Proceed in forma pauperis (ECF
No. 2, sealed)
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.
motion is governed by 28 U.S.C. § 1915(b). In
Plaintiff's pleadings, he identifies himself as being
incarcerated in Texas. 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[.]” 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. 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
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.
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
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).
Motion for Reconsideration of Appointment of Counsel (ECF No.
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.
grounds for requesting reconsideration of a non-dispositive
ruling are relatively narrow. D. Kan. Rule 7.3 provides ...