Perkins v. Johnson County Community College

Filing 10

MEMORANDUM AND ORDER denying 3 Motion for Leave to Proceed in forma pauperis. ; adopting 5 Report and Recommendations. The court orders plaintiff to pay the filing fee within 30 days of the date of this Order. If plaintiff fails to pay the filing fee within 30 days, the court may dismiss her case. Signed by District Judge Daniel D. Crabtree on 7/21/2017. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ROSALYN MARIE PERKINS,
Plaintiff,
v.
Case No. 17-cv-2126-DDC-GLR
JOHNSON COUNTY COMMUNITY
COLLEGE,
Defendant.
____________________________________

MEMORANDUM AND ORDER
On February 27, 2017, plaintiff Rosalyn Marie Perkins filed a Complaint against
defendant Johnson County Community College. In her Complaint, she alleges that defendant
discriminated against her on the basis of race in violation of Title VII of the Civil Rights Act, 42
U.S.C. § 2000 et seq. Doc. 1. Plaintiff also filed a Motion to Proceed Without Prepayment of
Fees (Doc. 3) and a Motion for Appointment of Counsel (Doc. 4).
On April 17, 2017, United States Magistrate Judge Gerald L. Rushfelt entered a Report
and Recommendation denying plaintiff’s Motion to Appoint Counsel and recommending that the
court deny plaintiff’s Motion to Proceed Without Prepayment of Fees. Doc. 5. Judge Rushfelt
noted in his Report and Recommendation that plaintiff may serve and file specific written
objections to the Report and Recommendation under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.
72 within 14 days after service. Id. at 2. Judge Rushfelt also explained that if plaintiff failed to
file timely objections, she would lose her right to appellate review by any court. Id. The docket
reflects that plaintiff received service of the Report and Recommendation on May 8, 2017. Doc.

7 (Certified Mail Receipt). The deadline for plaintiff to file objections was May 22, 2017.
Plaintiff has filed no objections to Judge Rushfelt’s Report and Recommendation.
If a party fails to make a proper objection, the court has considerable discretion to review
the recommendation under any standard that it finds appropriate. Summers v. Utah, 927 F.2d
1165, 1167 (10th Cir. 1991) (citations omitted). The court may adopt Judge Rushfelt’s Report
and Recommendation without review. Id. (quoting Henderson v. Carlson, 812 F.2d 874, 878 (3d
Cir. 1987)). While not obligated to do so, the court has decided to review Judge Rushfelt’s
Report and Recommendation. It agrees with his assessment of plaintiff’s Motion to Proceed
Without Prepayment of Fees.
Under 28 U.S.C. § 1915(a)(1), the court may authorize a plaintiff to commence an action
without prepaying fees after the plaintiff submits an affidavit demonstrating an inability to pay.
The court has broad discretion to grant or deny permission to proceed in forma pauperis. United
States v. Garcia, 164 F. App’x 785, 786 n.1 (10th Cir. 2006). But the court cannot act arbitrarily
or deny an application on erroneous grounds. Id. “[T]he movant must show a financial inability
to pay the required filing fees.” Id. (quoting Lister v. Dep’t of the Treasury, 408 F.3d 1309, 1312
(10th Cir. 2005)).
Plaintiff’s attached financial affidavit asserts that she is single with no dependents and
that she holds two jobs. She also asserts that she owns a home and two cars. Finally, plaintiff
states that, after expenses, her monthly net income is $764. Given these facts, plaintiff has not
shown that she is unable to pay the filing fee. The court adopts Judge Rushfelt’s Report and
Recommendation (Doc. 5) in its entirety and thus denies plaintiff’s Motion to Proceed Without
Prepayment of Fees (Doc. 3).

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IT IS THEREFORE ORDERED BY THE COURT THAT the court adopts Judge
Rushfelt’s Report and Recommendation in its entirety (Doc. 5). The court denies plaintiff’s
Motion to Proceed Without Prepayment of Fees (Doc. 3). The court orders plaintiff to pay the
filing fee within 30 days of the date of this Order. If plaintiff fails to pay the filing fee within 30
days, the court may dismiss her case.
IT IS SO ORDERED.
Dated this 21st day of July, 2017, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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