McRoberts v. Overland Park, Kansas, City of et al

Filing 10

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff Shauna McRoberts's "Objections to Report and Recommendations" (Doc. #9 ) is sustained. IT IS FURTHER ORDERED THAT plaintiff's Motion to Proceed Without Prepayment of Fees (Doc. #3 ) is granted. The court directs the Clerk of the Court to prepare Summons for defendants on plaintiff's behalf. Also, the court directs the Clerk of the Court to issue the Summons to the United States Marshal or Deputy Marshal, who the court appoints to effect service. Signed by District Judge Daniel D. Crabtree on 11/18/2021. (ca)

Case 2:21-cv-02470-DDC-TJJ Document 10 Filed 11/18/21 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHAUNA MCROBERTS,
Plaintiff,
Case No. 21-2470-DDC-TJJ
v.
CITY OF OVERLAND PARK,
KANSAS, et al.,
Defendants.
MEMORANDUM AND ORDER
Pro se plaintiff Shauna McRoberts1 brings this action against the City of Overland Park,
Kansas, the Board of Commissioners of Johnson County, Kansas, and several officials or
employees of those entities. See generally Doc. 1. She asserts civil rights violations based on an
alleged unlawful arrest and detention. Id. This matter comes before the court on plaintiff’s
Objection (Doc. 9) to Magistrate Judge Teresa J. James’s Report and Recommendation (Doc. 5),
recommending that the district court deny plaintiff’s Motion to Proceed Without Prepayment of
Fees (Doc. 3). Plaintiff’s Objection includes an amended Affidavit of Financial Status (Doc. 9 at
4–9) that, plaintiff explains, provides “[c]omprehensive details of Plaintiff’s updated assets and

Plaintiff has filed this lawsuit pro se. Generally, courts must construe pro se pleadings liberally.
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that courts must construe pro se
litigant’s pleadings liberally and hold them to a less stringent standard than formal pleadings drafted by
lawyers). But here, plaintiff asserts that she is a “licensed attorney in the state of Missouri, in good
standing.” Doc. 1 at 8 (Compl. ¶ 25). And, our Circuit “has repeatedly declined to extend the benefits of
liberal construction to pro se pleadings filed by attorneys who have chosen to represent themselves.”
Tatten v. City & Cnty. of Denver, 730 F. App’x 620, 624–25 (10th Cir. 2018) (citations omitted); see also
Mann v. Boatright, 477 F.3d 1140, 1148 n.4 (10th Cir. 2007) (“While we generally construe pro se
pleadings liberally, the same courtesy need not be extended to licensed attorneys.” (citations omitted)).
Consistent with this governing authority, the court doesn’t apply the liberal construction standard to
plaintiff’s filings here because she asserts that she is a licensed attorney in good standing.
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obligations[,]” (id. at 2), compared to the original Affidavit of Financial Status that she submitted
with her Motion to Proceed Without Prepayment of Fees (Doc. 3-1). After reviewing the
additional evidence plaintiff has supplied about her financial condition, the court sustains her
Objection to the Report and Recommendation (Doc. 9) and grants plaintiff’s Motion to Proceed
Without Prepayment of Fees (Doc. 3).
I.

Background

On October 18, 2021, plaintiff filed a Motion to Proceed Without Prepayment of Fees.
Doc. 3. She attached to her motion an Affidavit of Financial Status. Doc. 3-1. Based on the
information plaintiff submitted with her motion, Judge James issued a Report and
Recommendation, recommending that the district court deny plaintiff’s motion. Doc. 5.
Judge James correctly explained “the in forma pauperis statute,” 28 U.S.C. § 1915(a)(1),
permits the court to “‘authorize the commencement . . . of any suit, action or proceeding, civil or
criminal, . . . without prepayment of fees or security therefor, by a person who submits an
affidavit that includes a statement of all assets . . . that the person is unable to pay such fees or
give security therefor.’” Id. at 1–2 (quoting 28 U.S.C. § 1915(a)(1)). After reviewing plaintiff’s
Affidavit of Financial Status, Judge James concluded that plaintiff “has sufficient financial
resources to pay the filing fee” based on plaintiff’s “existing assets and low living expenses.” Id.
at 3–4.
Specifically, Judge James noted that plaintiff’s Affidavit reported she is single with no
dependents and currently unemployed. Id. at 3. But also, it asserted that plaintiff has more than
$9,000 in cash on hand and receives monthly disability benefits. Id. The Affidavit recited that
plaintiff’s monthly living expenses amount to $103 for a phone. Id. And, the Affidavit reported
that plaintiff has about $24,000 in credit card debt, but the total minimum monthly payment on

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the debt is about $500 per month. Id. Based on this information, Judge James concluded that
plaintiff “has adequate cash on hand to cover her monthly expenses for more than a year and still
have adequate reserves to pay the civil filing fee of $402.” Id. Thus, Judge James found that
plaintiff is capable financially of paying the filing fee. Id. at 3–4. And, Judge James
recommended that the district court deny plaintiff’s Motion to Proceed Without Prepayment of
Fees. Id. at 4.
On November 11, 2021, plaintiff filed an Objection to Judge James’s Report and
Recommendation. Doc. 9. Plaintiff’s Objection explains that her “situation [has] changed” from
the time that she submitted her initial Affidavit of Financial Status. Id. at 1. She asserts several
changes. First, plaintiff asserts, when she submitted her initial Affidavit, she was living
temporarily with her parents and borrowing their car. Id. But, on October 22, 2021, plaintiff
entered a one-year rental contract, and she now pays $1,200 per month to rent a small house. Id.
at 1–2. Also, plaintiff reports that she now is paying monthly utilities and insurance for her
rented home. Id. at 2. Second, plaintiff asserts, she purchased a used vehicle for $14,000. Id.
This too happened on October 22, 2021. Id. Plaintiff has financed $10,000 of the vehicle’s
purchase price. Id. And, she now owes payments on that financed amount, due in monthly
installments. Id. Third, plaintiff explains that her cash on hand as reported in her initial
Affidavit was inflated because she recently received a one-time back payment for disability
compensation from the Department of Veterans Affairs (“VA”). Id. But, plaintiff reports that
she still receives “a monthly disability compensation” from the VA “in the amount of
$3,146.42[.]” Id. Last, plaintiff asserts that she “fail[ed] to read carefully and did not list even
half the credit card accounts, i.e., debt obligations she is currently paying.” Id. So, plaintiff

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submitted an amended Affidavit with her Objection—one that, plaintiff explains, provides
“[c]omprehensive details of Plaintiff’s updated assets and obligations[.]” Id.
The amended Affidavit again reports that plaintiff is single with no dependents and
currently is unemployed. Id. at 4–5. Her Affidavit doesn’t report any other income, although the
Objection reports that plaintiff receives $3,146.42 monthly in disability benefits. Id. at 2.
Plaintiff now reports her amount of cash on hand as $1,819.83. Id. at 7. And, she reports
monthly expenses of $200 for her car payment, $1,200 for rent, and about $1,000 in other
monthly household expenses. Id. at 7–8. Also, plaintiff reports additional credit card debt
totaling about $33,000, but the minimum monthly payments for the debt amounts to about $900.
Based on the information provided in plaintiff’s amended Affidavit, her monthly
expenses total about $3,300, just slightly exceeding the monthly payment of $3,146.42 she
receives in disability benefits. Plaintiff asserts that her current financial condition—as reported
in her amended Affidavit of Financial Status—warrants the court granting her leave to proceed in
forma pauperis.
II.

Legal Standard

Fed. R. Civ. P. 72(b)(2) provides that, after a magistrate judge enters a recommended
disposition on a dispositive matter, a party may serve and file specific, written objections to the
magistrate judge’s order within 14 days after being served with a copy of the recommended
disposition. Then, under Fed. R. Civ. P. 72(b)(3), the district court “must determine de novo any
part of the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P.
72(b)(3); see also 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made.”). After making this determination, the district court “may accept,

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reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge . . . [or] may also receive further evidence or recommit the matter to the magistrate judge
with instructions.” 28 U.S.C. § 636(b)(1).
“In conducting a de novo review, the Court must consider relevant evidence of record
and not merely review the magistrate judge recommendation.” Kelly-Leppert v. Monsanto/Bayer
Corp., No. 20-2121-KHV, 2020 WL 2507634, at *2 (D. Kan. May 15, 2020) (citing Griego v.
Padilla, 64 F.3d 580, 584 (10th Cir. 1995)). And, as just stated, a court may “receive further
evidence” when deciding an objection to the magistrate judge’s recommendations. See 28
U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3). “Whether to receive additional evidence is
committed to the Court’s sound discretion.” Kelly-Leppert, 2020 WL 2507634, at *2 (citing
Henderson v. Echostar Commc’ns Corp., 172 F. App’x 892, 895 (10th Cir. 2006)).
III.

Analysis

Like Judge James did in her Report and Recommendation, the court applies 28 U.S.C. §
1915(a)(1) to determine whether plaintiff qualifies to proceed in forma pauperis. The statute
requires plaintiff to show that she “is unable to pay [the] fees or give security therefor.” 28
U.S.C. § 1915(a)(1).2 The court has “wide discretion” when deciding whether to permit a
litigant to proceed in forma pauperis. United States v. Garcia, 164 F. App’x 785, 786 n.1 (10th
Cir. 2006) (citation and internal quotation marks omitted). But, the court may not rule such
requests arbitrarily or erroneously. Id. (citation omitted). So, “to succeed on a motion to
proceed [in forma pauperis],” a movant simply “must show a financial inability to pay the
required filing fees, as well as the existence of a reasoned, nonfrivolous argument . . . in support

Although the statute speaks of incarcerated individuals, it “applies to all persons applying for [in
forma pauperis] status, and not just to prisoners.” Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th
Cir. 2005) (citations omitted)
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of the issues raised in the action.” Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir.
2005).
Exercising its broad discretion here, the court finds that plaintiff has made this requisite
showing. Her amended Affidavit of Financial Status shows that she is unable to pay the required
filing fee. Plaintiff has minimal assets, significant debt, and her monthly expenses (which the
court finds reasonable) exceed her monthly income by about $150. And, although plaintiff has
some cash on hand, the court won’t require her to deplete almost half of those funds to pay the
filing fee when her current financial condition has a monthly net shortfall of about $150. Also,
the court finds that plaintiff’s Complaint alleges “a reasoned, nonfrivolous argument . . . in
support of the issues raised in the action” by asserting violations of 42 U.S.C. § 1983 and Kansas
common law based on an alleged unlawful arrest and detention. Lister, 408 F.3d at 1312.
In sum, given the additional and updated evidence plaintiff has provided about her
financial status, the court finds that she has “show[n] a financial inability to pay the required
filing fees” for facially legitimate allegations. Id. Thus, the court sustains plaintiff’s Objection
(Doc. 9) and grants her Motion to Proceed Without Prepayment of Fees (Doc. 3).
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff Shauna
McRoberts’s “Objections to Report and Recommendations” (Doc. 9) is sustained.
IT IS FURTHER ORDERED THAT plaintiff’s Motion to Proceed Without
Prepayment of Fees (Doc. 3) is granted. Under 28 U.S.C. § 1915(a)(1), plaintiff may commence
this action without prepayment of fees or security therefor. The court directs the Clerk of the
Court to prepare Summons for defendants on plaintiff’s behalf. Also, the court directs the Clerk
of the Court to issue the Summons to the United States Marshal or Deputy Marshal, who the
court appoints to effect service. Fed. R. Civ. P. 4(c)(3).

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IT IS SO ORDERED.
Dated this 18th day of November, 2021, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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