Jones v. Kansas State Board of Nursing et al
MEMORANDUM AND ORDER granting 3 Motion for Leave to Proceed in forma pauperis; denying 4 Motion to Appoint Counsel. The Court notes that this document also serves as the Report & Recommendation of Dismissal to the District Court. It appears on the Court's electronic docketing system as two documents for administrative/tracking purposes. Signed by Magistrate Judge Kenneth G. Gale on 5/2/18. Mailed to pro se party Crystal Nicole Jones by certified mail. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CRYSTAL NICOLE JONES,
KANSAS STATE BOARD OF NURSING, )
Case No. 18-2175-JAR-KGG
MEMORANDUM & ORDER ON
MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES,
MOTION TO APPOINT COUNSEL, AND
REPORT & RECOMMENDATION FOR DISMISSAL
In conjunction with her federal court Complaint (Doc. 1), Plaintiff Crystal
Nicole Jones 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). Plaintiff also filed a Motion to Appoint Counsel. (Doc. 4.) After
review of Plaintiff’s motions, as well as the Complaint, the Court GRANTS the
IFP application (Doc. 3), DENIES her request for counsel (Doc. 4), and
recommends Plaintiff’s claims be dismissed for failure to state a viable federal
cause of action.
Motion to Proceed IFP.
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). “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).
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 the supporting financial affidavit, Plaintiff indicates she is 38 and
separated. (Doc. 3, sealed, at 1.) She lists one dependent, but lists the dependent’s
age as 18. (Id., at 2.) Plaintiff does not include an explanation as to why this
individual, who is legally an adult, should be considered a dependent (such as
mental or physical impairment). As such, the Court will not consider this in
determining Plaintiff’s IFP status.
Plaintiff is currently employed with a home health care company as a “nonmedical assistant,” earning a modest wage. (Id.) Plaintiff owns real property, in
which there is a small amount of equity. (Id., at 3.) She also owns a modest
automobile. (Id., at 4.) She lists no cash on hand. (Id.) Plaintiff lists typical
monthly expenses, including rent, groceries, utilities, and automobile insurance.
(Id., at 5.) She also lists an outstanding debt to Kansas Gas, with a significant
monthly payment. (Id.)
Considering the information contained in her financial affidavit, the Court
finds that Plaintiff has established that her 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.)
Motion to Appoint Counsel.
Plaintiff has also filed a motion requesting the appointment of counsel.
(Doc. 4.) As an initial matter, the Court notes that 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
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 A., supra, Plaintiff’s financial situation would make
it impossible for her to afford counsel. The second factor is Plaintiff’s diligence in
searching for counsel. Based on the information contained in the form motion,
Plaintiff has been diligent, but unsuccessful, in her attempt to secure legal
representation. (Doc. 4.) As for the next factor, the Court has concerns regarding
the viability of Plaintiff’s claims in federal court, as discussed in Section C., infra.
See McCarthy, 753 F.2d at 838-39 (10th Cir. 1985); Castner, 979 F.2d at 1421.
The Court’s analysis thus turns to the final factor, Plaintiff’s capacity to prepare
and present the case without the aid of counsel. Castner, 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
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. As such, the
Motion to Appoint Counsel (Doc. 4, sealed) is DENIED.
Sufficiency of Complaint and Recommendation for Dismissal.
Pursuant 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).
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
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
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).
While a 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, 011189, 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
Plaintiff alleges that she is “a victim of Civil/Bill of Rights violations
because [Defendant] KBN denied [her] due process under Equal Protection Clause
and the 14th Amendment.” (Doc. 1, at 3.) Plaintiff’s pro se Complaint does not
provide any specifics as to how or when these alleged violations occurred. (See
generally Doc. 1.) Plaintiff does, however, attach some 43 pages of documents to
her Complaint which, taken as a whole, provide sufficient factual context regarding
the process by which her nursing license was revoked. (See generally Doc. 1-1.)
Unfortunately for Plaintiff, this factual context would appear to establish that
Plaintiff was given due process through numerous opportunities to present her
claims to review boards and agencies.
As such, the Court finds that Plaintiff has failed to state a claim for which
relief can be granted under the facts alleged. Plaintiff has not specified how her
rights have been violated and the Court cannot discern a viable claim against
Defendants based on the facts alleged (and contained in the attachments to her
Complaint). The undersigned Magistrate Judge thus recommends to the District
Court that Plaintiff’s claims be DISMISSED in their entirety.
IT IS THEREFORE ORDERED that Plaintiff’s motion for IFP status (Doc.
3) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Appointment of
Counsel (Doc. 4) is DENIED.
IT IS RECOMMENDED to the District Court that Plaintiff’s Complaint be
DISMISSED for the failure to state a claim on which relief may be granted. The
Clerk’s office shall not proceed to issue summons in this case.
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, any 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 14-day period
will bar appellate review of the proposed findings of fact, conclusions of law, and
the recommended disposition.
IT IS SO ORDERED AND RECOMMENDED.
Dated at Wichita, Kansas, on this 2nd day of May, 2018.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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