Bey v. Kelly et al

Filing 7

ORDER denying #3 Motion for Leave to Proceed in forma pauperis. Plaintiff is ordered to pay the filing fee in U.S. currency by September 30, 2021. See Order for full details. Signed by Magistrate Judge James P. O'Hara on 9/8/2021. Mailed to pro se party Michelle Avery Bey by regular and certified mail; Certified Tracking Number: 7017 1000 0000 0699 6822. (ca)

Case 2:21-cv-02367-KHV-JPO Document 7 Filed 09/08/21 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MICHELLE AVERY BEY,

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Plaintiff,
v.
LAURA KELLY,
Kansas Governor, in her official and
individual capacities , et al.,
Defendants.

Case No. 21-2367-KHV

ORDER
The pro se plaintiff, Michelle Avery Bey, has moved to proceed with this action in
forma pauperis (ECF No. 3). The court has reviewed plaintiff’s motion, financial affidavit,
and supplemental financial affidavit. Because plaintiff has not demonstrated an inability
to pay the required filing fee, the motion is denied.
Section 1915 of Title 28 of the United States Code allows the court to authorize the
commencement of a civil action “without prepayment of fees or security therefor, by a
person who submits an affidavit that . . . the person is unable to pay such fees or give
security therefor.” However, “[p]roceeding in forma pauperis in a civil case is a privilege,
not a rightCfundamental or otherwise.”1 In considering a request to proceed in forma
pauperis, the court will compare an applicant’s monthly income and cash on hand to her

1

Green v. Suthers, 208 F.3d 226, at *2 (10th Cir. 2000) (quoting White v. Colo., 157
F.3d 1226, 1233 (10th Cir. 1998)).

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Case 2:21-cv-02367-KHV-JPO Document 7 Filed 09/08/21 Page 2 of 4

monthly expenses and financial obligations.2 The decision to grant or deny in forma
pauperis status under ' 1915 lies within the sound discretion of the trial court.3
Plaintiff has failed to adequately demonstrate the need to proceed in forma pauperis.
Her initial financial affidavit indicated only that she “does not have, or possess, the gold or
silver coin, as prescribed by United States Constitution Law” as “lawful tender.”4 Because
this affidavit provided no information with respect to plaintiff’s employment status,
financial status, or financial obligations from which the court could make an informed
decision about whether the waiver of court costs and fees is justified in this case, the court
ordered plaintiff to file a supplemental financial affidavit.5 The court specifically directed:
the supplemental affidavit should include information regarding plaintiff’s
employment status, ownership in real property (if any), the amount of
plaintiff’s cash on hand (if any), the amount of money received from
government and other sources in the last 12 months (if any), plaintiff’s
monthly expenses and obligations, as well as any other matter which might
be pertinent to the court’s determination of whether to allow plaintiff to
proceed in forma pauperis.”6
The court directed plaintiff to the form affidavit of financial status available on the
court’s website, which the court encouraged plaintiff to use.7

See Heady v. Wendy’s/Arby’s Group, Inc., No. 11-1151, 2011 WL 3889247, at *1
(D. Kan. Sept. 2, 2011) (citing cases).
2

Azzun v. Kan. Dep’t of Health and Env’t, No. 09-4144, 2009 WL 5171778, at *2
(D. Kan. 2009) (citing Cabrera v. Horgas, No. 98-4231, 1999 WL 241783, at *1 (10th Cir.
Apr. 23, 1999)).
3

4

ECF No. 3-1 at 1.

5

ECF No. 4.

6

Id. at 2.

7

Id.
2

Case 2:21-cv-02367-KHV-JPO Document 7 Filed 09/08/21 Page 3 of 4

Plaintiff’s supplemental affidavit provided none of the information requested by the
court, nor any other information indicating plaintiff is unable to pay the court’s fees.8
Instead, plaintiff takes the position that she has a constitutional right to proceed in federal
court to redress a grievance, and that court fees inappropriately turn this “said secured right
of the First Amendment of the United States Constitution into a privilege.” As the court
noted above, however, the Tenth Circuit Court of Appeals has previously rejected this
argument, clearly holding that “[p]roceeding in forma pauperis in a civil case is a privilege,
not a rightCfundamental or otherwise.”9
Without providing any substantive information about her financial condition,
plaintiff has not shown that she is entitled to in forma pauperis status. Plaintiff indicates
that she will pay the filing fee if her motion is denied, but requests the court inform her “of
the specie in which to pay.”10 Plaintiff is ordered to pay the filing fee in U.S. currency by
September 30, 2021. If plaintiff fails to pay the fee in full by this deadline, the undersigned
will issue a report and recommendation to the presiding U.S. District Judge, Kathryn H.
Vratil, recommending that the case be dismissed without prejudice for lack of prosecution.
Plaintiff is hereby informed that, within 14 days after she is served with a copy of
this order, she may, pursuant to Fed. R. Civ. P. 72 and D. Kan. Rule 72.1.4(a), file written
objections by filing a motion for review of this order. Plaintiff must file any objections

8

ECF No. 5-1.

9

Green, 208 F.3d 226, at *2 (quoting White, 157 F.3d at 1233).

10

ECF No. 5-1 at 2.
3

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within the 14-day period if she wants to have appellate review of this order. If plaintiff
does not timely file her objections, no court will allow appellate review.
A copy of this order shall be mailed to plaintiff by certified and regular mail.
IT IS SO ORDERED.
Dated September 8, 2021, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U. S. Magistrate Judge

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