Roudybush v. Mitchell et al

Filing 5

MEMORANDUM AND ORDER granting 3 Motion for Leave to Proceed in forma pauperis; denying 4 Motion to Appoint Counsel. This Order also serves as the REPORT & RECOMMENDATION of DISMISSAL to the District Court of Plaintiff's Complaint 1 . The document is included in the Court's electronic filing system as two entries for docketing/tracking purposes. Signed by Magistrate Judge Kenneth G. Gale on 8/3/17. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN ROUDYBUSH,

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Plaintiff,
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vs.
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ELLEN MITCHELL, et al.,
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Defendants. )
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Case No. 17-2421-CM-KGG

ORDER ON MOTION TO PROCEED
WITHOUT PREPAYMENT OF FEES AND
MOTION TO APPOINT COUNSEL, AND
REPORT & RECOMMENDATION OF DISMISSAL
In conjunction with his federal court Complaint, pro se Plaintiff John
Roudybush has filed a Motion for Leave to Proceed In Forma Pauperis (Doc. 3,
sealed) with supporting financial affidavit (Doc. 3-1, sealed) as well as a Motion to
Appoint Counsel (Doc. 4). Having reviewed Plaintiff’s motions, as well as his
Complaint, the Court GRANTS IFP application and DENIES Plaintiff’s request
for counsel. Further, the Court RECOMMENDS that the District Court
DISMISS Plaintiff’s claims in their entirety.
I.

Motion to Proceed In Forma Pauperis
Under 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). In so doing, the court considers the affidavit of
financial status included with the application. See id.
There 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”).
In his supporting financial affidavit, Plaintiff indicates he is 54 years old and
single with an infant, who he lists as a “companion,” identified as a dependent.
(Doc. 3-1, sealed, at 1-2.) He indicates he provides a small amount of monthly
support for the infant. (Id., at 2.) He is currently unemployed but previously
worked as a manager or sales person making a steady weekly wage. (Id., at 2-3.)
He owns real property, but apparently owes significantly more than the property is
worth (Id., at 3.) He does not own an automobile. (Id., at 4.)
Plaintiff lists no cash on hand or income from other sources such as
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government benefits. (Id., at 4-5.) He enumerates typical monthly expenses,
including rent, groceries, and utilities in addition to significant debts. (Id., at 5.)
He has never filed for bankruptcy. (Id. at 6.)
Considering all of the information contained in his financial affidavit, the
Court finds that Plaintiff has established that 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.)
II.

Motion to Appoint Counsel.
Plaintiff has also filed a motion requesting the appointment of counsel.

(Doc. 4.) There is no constitutional right to have counsel appointed in civil cases
such as this one. Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1169 (10th Cir.
2003). “[A] district court has discretion to request counsel to represent an indigent
party in a civil case” pursuant to 28 U.S.C. § 1915(e)(1). Commodity Futures
Trading Comm’n v. Brockbank, 316 F. App’x 707, 712 (10th Cir. 2008). The
decision whether to appoint counsel “is left to the sound discretion of the district
court.” Lyons v. Kyner, 367 F. App’x 878, n.9 (10th Cir. 2010) (citation omitted).
The Tenth Circuit has identified four factors to be considered when a court is

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deciding whether to appoint counsel for an individual: (1) plaintiff’s ability to
afford counsel, (2) plaintiff’s diligence in searching for counsel, (3) the merits of
plaintiff’s case, and (4) plaintiff’s capacity to prepare and present the case without
the aid of counsel. McCarthy v. Weinberg, 753 F.2d 836, 838-39 (10th Cir. 1985)
(listing factors applicable to applications under the IFP statute); Castner v.
Colorado Springs Cablevision, 979 F.2d 1417, 1421 (10th Cir. 1992) (listing
factors applicable to applications under Title VII). Thoughtful and prudent use of
the appointment power is necessary so that willing counsel may be located without
the need to make coercive appointments. The indiscriminate appointment of
volunteer counsel to undeserving claims will waste a precious resource and may
discourage attorneys from donating their time. Castner, 979 F.2d at 1421.
As discussed in Section I., above, Plaintiff’s financial situation would make
it impossible for him to afford counsel. The second Castner factor is Plaintiff’s
diligence in searching for counsel. The form motion used by Plaintiff indicates
that he has contacted at least 12 attorneys but was unable to find representation.
(Doc. 4.)
The next factor is the merits of Plaintiff’s case. See McCarthy, 753 F.2d at
838-39 (10th Cir. 1985); Castner, 979 F.2d at 1421. As discussed in Section III,
below, the Court has serious concerns regarding the viability of Plaintiff’s claims.
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This factor thus weighs against the appointment of counsel. The Court will,
however, focus its analysis on the final Castner factor, Plaintiff’s capacity to
prepare and present the case without the aid of counsel. 979 F.2d at 1420-21.
In considering this factor, the Court must look to the complexity of the legal
issues and Plaintiff’s ability to gather and present crucial facts. Id., at 1422. The
Court notes that the factual and legal issues in this case are not unusually complex.
Cf. Kayhill v. Unified Govern. of Wyandotte, 197 F.R.D. 454, 458 (D.Kan. 2000)
(finding that the “factual and legal issues” in a case involving a former employee’s
allegations of race, religion, sex, national origin, and disability discrimination were
“not complex”).
The Court sees no basis to distinguish Plaintiff from the many other
untrained individuals who represent themselves pro se on various types of claims
in Courts throughout the United States on any given day. Although Plaintiff is not
trained as an attorney, and while an attorney might present this case more
effectively, this fact alone does not warrant appointment of counsel. Plaintiff has
presented no special circumstances that would justify the appointment of counsel
in this instance. As such, the Motion to Appoint Counsel (Doc. 4, sealed) is
DENIED.
III.

Sufficiency of Complaint and Recommendation of Dismissal.
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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.
28 U.S.C. §1915(e)(2). Section 1915 of Title 28, United States Code, requires
dismissal of a case filed under that section if the court determines that the action
(1) is frivolous or malicious, (2) fails to state a claim upon which relief may be
granted or (3) seeks monetary relief from a defendant who is immune from suit. 28
U.S.C. §1915(e)(2).1 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).
In 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

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Courts have held that the screening procedure set out in § 1915(e)(2) applies to
all litigants, prisoners and non-prisoners alike, regardless of their fee status. See e.g.,
Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999); McGore v. Wigglesworth, 114 F.3d
601, 608 (6th Cir. 1997).
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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). This 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.
A 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
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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).
Although a complaint generally need not plead detailed facts, Fed.R.Civ.P.
8(a), it must give the defendants 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 in order 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 he has failed to state a claim upon
which relief may be granted, the Court is compelled to recommend that the action
be dismissed.

As an initial matter, four of the individual Defendants listed in the
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Complaint – William B. Elliot, Richard A. Buck, Steve Marten, and Melvin Ray
Lagerman – are not mentioned anywhere in the factual allegations or in the context
of Plaintiff’s legal assertions. (See id., at 1-9.) Simply stated, there is not a single
factual allegation regarding these four individuals linking them to any potential
cause of action or claim for relief. Their names are merely listed on page 2 of the
Complaint. Thus, the Court is unable to glean any viable cause of action against
these Defendants arising out of the allegations stated by Plaintiff. The Court
recommends that the District Court dismiss these four Defendants (Elliot, Buck,
Marten and Lagerman) from this case.
Plaintiff’s Complaint lists causes of action for fraud, perjury, and witness
tampering. (Doc. 1, at 3.) He contends that Defendant Ellen Mitchell, who he
identifies as a county attorney, “has conspired with other[s] to commit purgery
[sic], fraud and harass [Plaintiff] over 15 years!” (Id.)
A narrative attachment to Plaintiff’s Complaint contains additional
information, including allegations unrelated to his claims of perjury, fraud and
harassment. The Court notes that Ms. Mitchell is not referenced anywhere in the
attachment. (Id., at 809.) In the attachment, Plaintiff contends that he was injured
with a hernia while “through [thrown] in to jail . . . and Saline Co. has made no
attempted [sic] to pay for the injury they have caused.” (Id., at 8.) He does not,
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however, provide any factual allegations that would link Ms. Mitchell to this
alleged injury. The Court surmises from Plaintiff’s Complaint that Ms. Mitchell is
a prosecuting attorney, not an employee or administrator of the Saline County jail.
The Court fails to see how she would be legally responsible for Plaintiff’s
treatment while incarcerated.
Most of the remainder of Plaintiff’s allegations relate to his unsuccessful
attempts to seek representation for his claims and his unsuccessful attempts to
receive compensation from Saline County for his alleged injuries. (Id., at 8-9.)
There is nothing in the Complaint or narrative attachment indicating that Ms.
Mitchell, as a prosecuting attorney, would have authority to enter into settlement
negotiations on behalf of Saline County. There are no factual allegations
indicating that she was engaged in efforts to deny him representation.
Plaintiff also requests that the Court file a criminal complaint “with the
United States district prosecuting attorneys” against the Defendants. (Id., at 9.)
The Tenth Circuit has concluded that such an order is inappropriate as it “would
improperly intrude upon the separation of powers.” Presley v. Presley, 102 F.
App’x 636, 636 (10th Cir. 2004).
As stated above, for purposes of this Order, the Court liberally construes the
allegations in Plaintiff’s Complaint. While the Court is sympathetic to the obvious
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frustration felt by Plaintiff, the Court cannot find that his Complaint states a
plausible cause of action to which the Defendants could be reasonably expected to
respond, or which could form a basis for relief from this Court.
Plaintiff has failed to provide any factual detail as to how Defendants
conspired to commit perjury or fraud. The Complaint is also devoid of specifics as
to how he was “harassed” by Defendants. Finally, there is no indication as to when
any of the complained-of activity occurred, including Plaintiff’s alleged injury
sustained in jail. This raises serious concerns regarding the potential statutes of
limitations for Plaintiff’s claims. As such, the Court finds Plaintiff’s Complaint to
be frivolous.
Plaintiff has failed to allege sufficient facts to state a claim which is facially
plausible. He has not stated a claim upon which relief may be granted through his
mere conclusions that Defendants are liable for his alleged injuries. See Fisher,
531 F. Supp.2d at 1260 (citations omitted). The undersigned Magistrate Judge thus
recommends that the District Court DISMISS Plaintiff’s Complaint (Doc. 1) in its
entirety.

IT IS THEREFORE ORDERED that Plaintiff’s motion to proceed IFP
(Doc. 3, sealed) is GRANTED.
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IT IS FURTHER ORDERED that Plaintiff’s motion for appointment of
counsel (Doc. 4) is DENIED.
IT IS THEREFORE RECOMMENDED to the District Court that
Plaintiff’s Complaint (Doc. 1) be DISMISSED for failure to state a claim upon
which relief may be granted.
IT IS THEREFORE ORDERED that a copy of the recommendation shall
be sent to Plaintiff via certified mail. Pursuant to 28 U.S.C. §636(b)(1),
Fed.R.Civ.P. 72, and D.Kan. Rule 72.1.4, Plaintiff shall have fourteen (14) days
after service of a copy of these proposed findings and recommendations to serve
and file with the U.S. District Judge assigned to the case, his written objections to
the findings of fact, conclusions of law, or recommendations of the undersigned
Magistrate Judge. Plaintiff’s failure to file such written, specific objections within
the fourteen-day period will bar appellate review of the proposed findings of fact,
conclusions of law, and the recommended disposition.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 3rd day of August, 2017.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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