Waller v. Waller

Filing 6

REPORT AND RECOMMENDATION that Plaintiff's #3 MOTION for Leave to Proceed in forma pauperis be denied and that the case be dismissed (Objections to R&R due by 5/20/2022), and ORDER denying #4 MOTION for Appointment of Counsel. Signed by Magistrate Judge Teresa J. James on 5/6/22. Mailed to pro se party Michael T. Waller by regular mail. (ct)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHAEL T. WALLER,
Plaintiff,
v.
DOLLY ARDONA WALLER,
Defendant.

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Case No. 22-cv-2122-HLT-TJJ

ORDER AND REPORT AND RECOMMENDATION
Michael T. Waller, proceeding pro se, filed this action against his wife, Dolly Ardona
Waller, alleging she made false, defamatory, and libelous statements before and during their
divorce proceedings. Plaintiff asserts this Court has subject matter jurisdiction based on
constitutional grounds and because perjury is a federal crime. This matter comes before the
Court on Plaintiff’s Motion to Proceed Without Prepayment of Fees (in forma pauperis) (ECF
No. 3) and Plaintiff’s Motion for Appointment of Counsel (ECF No. 4).
Section 1915 of Title 28 of the United States Code allows the court to authorize the
commencement of a civil action “without the prepayment of fees or security therefor, by a person
who submits an affidavit . . . [if] the person is unable to pay such fees or give security therefor.”
To succeed on a motion to proceed in forma pauperis, the movant must show a financial inability
to pay the required filing fees. The decision to grant or deny in forma pauperis status under §
1915 lies within the “wide discretion” of the trial court.
Plaintiff has failed to show a financial inability to pay the required filing fee. The first
three pages of the financial affidavit—which include questions about current and prior
employment—are missing from Plaintiff’s motion. It appears, however, that he has a job because
he notes on the last page that he started a 401(k) in January 2022. Plaintiff also indicates that he

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received $39,950 ten months ago from a lawsuit settlement. This lump sum suggests that
Plaintiff has the ability to pay the filing fee in this case, regardless of the amount of his monthly
household expenses and monthly income. In any event, the Court cannot tell whether Plaintiff’s
monthly expenses exceed his monthly income because he did not include his employment
information. He also lists five vehicles that are owned and $400 in cash-on-hand. Although
Plaintiff’s allegations suggest that he remains married (but in the midst of a divorce), he has not
listed his spouse’s employment or income. In making the determination whether Plaintiff may
proceed in forma pauperis, “the Court may consider the total monetary resources available to
assist Plaintiff, and ‘it is appropriate to consider a spouse’s income.’”1 (Of course, the Court
understands here that Plaintiff’s wife may not want to financially support a lawsuit against
herself.)
After reviewing Plaintiff’s motion and the accompanying affidavit, the undersigned
Magistrate Judge finds the motion to proceed in forma pauperis should be denied, and will make
such recommendation.
When a party seeks to proceed without the prepayment of fees, § 1915 requires the Court
to conduct an initial review of the party’s complaint.2 The Court must dismiss the case if the

1

Dow v. Colvin, No. 4:13-CV-299-A(BJ), 2013 WL 1952092, at *1 (N.D. Tex. April 15,
2013) (quoting Muhammad v. Louisiana Attorney Disciplinary Bd., No. 09-3431, 2009 WL
3150041, at *1 (E.D. La. Sept. 25, 2009)).
2

The statute requires such screening in all cases where a party seeks to proceed in forma
pauperis, and not only in cases where the court grants the motion. Franklin v. Kramer, No. C 1206335 LB, 2013 WL 120404, at *1–2, (N.D. Cal. Jan. 8, 2013) (screening case under §
1915(e)(2) after denying motion to proceed in forma pauperis); Palazzolo v. University of
Michigan Hosp., No. 10-10650, 2010 WL 1780958, at *1 (E.D. Mich. April 30, 2010)
(“[Section] 1915(e)(2)(B) provides that, in cases when a plaintiff is proceeding, or attempting to
proceed, in forma pauperis, the court shall dismiss the case at any time if the court determines
2

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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. The purpose of § 1915(e) is to “discourage the filing of, and waste of judicial and private
resources upon, baseless lawsuits that paying litigants generally do not initiate because of the
costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under
Federal Rule of Civil Procedure 11.”3
Fed. R. Civ. P. 8(a)(2) requires that a complaint provide a “short and plain statement of
the claim showing that the pleader is entitled to relief.” Additionally, the complaint must state
more than “labels and conclusions” and “[f]actual allegations must be enough to raise a right to
relief above the speculative level.”4 Because Plaintiff proceeds pro se, his pleadings are liberally
construed.5 Liberal construction, however, “does not relieve the plaintiff of the burden of
alleging sufficient facts on which a recognized legal claim could be based.”6
Here, the problem with Plaintiff’s allegations is they are based solely on a domestic
dispute and state law. Plaintiff does not allege a constitutional provision or federal statute that
governs his claim; he alleges Defendant defamed and libeled him before and during his divorce
proceedings. Although he claims that Defendant perjured herself, he acknowledges that perjury

that the action is frivolous or fails to state a claim upon which relief can be granted.”); Price v.
United Postal Serv., No. 01 C 3645, 2001 WL 585512, at *1 (N.D. Ill. May 25, 2001) (screening
case under § 1915(e)(2) after denying motion to proceed in forma pauperis).
3

Trujillo v. Williams, 465 F.3d 1210, 1216 (10th Cir. 2006).

4

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

5

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

6

Id.
3

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is a crime—not a civil action. And this Court lacks jurisdiction over state court divorce
proceedings or substantive issues arising out of them:
“It is well-established that federal courts lack jurisdiction over the
whole subject of domestic relations of husband and wife, and
parent and child.” Hunt v. Lamb, 427 F.3d 725, 727 (10th Cir.
2005) (quoting Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992)
(quoting In re Burrus, 136 U.S. 586, 593–94 (1890))). This is not a
removal action from state court, but plaintiff’s claims and
especially the facts she describes, read like a list of complaints
about the outcome of the state court divorce and child custody
proceedings. To the extent plaintiff is trying to raise substantive
issues regarding the divorce and child custody proceedings, this
court does not have jurisdiction.7
All of Plaintiff’s allegations in this case center on his spouse’s alleged untruths and
physical assault. It appears Plaintiff may want this Court to interfere with the state court divorce
proceedings or otherwise issue rulings that may impact the state court proceedings. Certainly, it
seems at a minimum that this Court should decline to exercise jurisdiction under the Younger8
abstention doctrine since the state court proceedings are ongoing.9
“Federal courts may abstain or decline from deciding an issue in order to preserve
traditional principles of equity, comity and federalism. Such discretion is particularly appropriate
where the state has a strong interest and competence in dealing with the subject matter at issue,
such as child custody and domestic relations matters.”10 Here, there is no question that the

7

Protheroe v. Pokorny, et al., Case No. 16-cv-2387-CM-JPO, 2016 WL 6822657, at *4
(D. Kan. Nov. 18, 2016).
8

Younger v. Harris, 401 U.S. 37 (1971).

9

See Winnebago Tribe of Neb. v. Stovall, 341 F.3d 1202, 1204 (10th Cir. 2003).

10

Reeves v. Warren County, No. 4:08CV1708CDP, 2008 WL 5171346, at *1–2 (E.D.
Mo. Dec. 9, 2008) (internal citations omitted).
4

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subject of Plaintiff’s allegations falls within the ambit and expertise of the state courts. The
Complaint reveals no facts which would support the District of Kansas hearing Plaintiff’s claim
against Defendant. Plaintiff fails to state a claim against Defendant upon which relief can be
granted. Alternatively and additionally, to the extent Plaintiff is trying to raise substantive issues
regarding his divorce proceedings, this Court lacks jurisdiction over the action and it is the sole
province of the Wyandotte County District Court to address Plaintiff’s concerns about those
proceedings.
Finally, Plaintiff asks the Court to appoint counsel to represent him in this matter. While
a defendant in a criminal action has a constitutional right to be represented by an attorney, it is
well-settled that a party in a civil action has no right to appointment of counsel.11 Although the
Court recommends denial of in forma pauperis status, even if the Court were to grant Plaintiff
leave to proceed in forma pauperis, the Court would still deny appointment of counsel. Under §
1915(e)(1), the Court considers the following factors in deciding whether to appoint counsel: (1)
the claims’ merits, (2) the nature of the factual issues, (3) the plaintiff’s ability to present his/her
claims, and (4) the complexity of the legal issues involved or raised.12 The court must keep in
mind that Congress has not provided any mechanism for compensating such appointed counsel,
therefore “[t]houghtful 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

11

Lee v. Crouse, 284 F. Supp. 541, 543–44 (D. Kan. 1967) (“There is no absolute right to
appointment of counsel in either habeas corpus or civil rights actions.”).
12

Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).
5

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discourage attorneys from donating their time.”13
Under these factors, the lack of merit in Plaintiff’s claims indicates to this Court that
appointment of counsel is not appropriate. Moreover, the factual issues are not difficult, Plaintiff
appears capable of presenting his own claims, and the legal issues are not complex. The Court
therefore denies Plaintiff’s request to appoint counsel. In addition, for the reasons explained
supra, the undersigned U.S. Magistrate Judge recommends that Plaintiff’s motion to proceed in
forma pauperis be DENIED, and that Judge Teeter DISMISS this action.
Plaintiff is hereby informed that, within 14 days after he is served with a copy of this
Report and Recommendation, he may, pursuant to 28 U.S.C. § 636(b)(1) and Fed R. Civ. P. 72,
file written objections to the Report and Recommendation. Plaintiff must file any objections
within the 14-day period allowed if he wants to have appellate review of the recommended
disposition. If Plaintiff does not timely file his objections, no court will allow appellate review.
A copy of this Report and Recommendation shall be mailed to Plaintiff.
IT IS SO ORDERED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Appointment of Counsel (ECF
No. 4) is DENIED.
Dated this 6th day of May, 2022, at Kansas City, Kansas.

Teresa J. James
U.S. Magistrate Judge

13

Castner v. Colo. Springs Cablevision, 979 F.2d 1417, 1421 (10th Cir. 1992).
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