Rittgers v. Hale et al
MEMORANDUM AND ORDER granting 3 Motion for Leave to Proceed in forma pauperis. Signed by Magistrate Judge Kenneth G. Gale on 3/6/17. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 17-4019-DDC-KGG
MEMORANDUM & ORDER ON
MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES
Plaintiff filed the present action in the District Court of Lyon County,
Kansas, alleging Defendants defamed her by accusing her of writing racial slur on
a notebook on the Emporia State University campus. The case was removed to
federal court by Defendants, who also filed a Motion to Proceed Without
Prepayment of Fees (IFP Application, Doc. 3, sealed), with an accompanying
Affidavit of Financial Status (Doc. 3-1, sealed). Having reviewed Defendants’
motion, as well as their financial affidavit, the Court GRANTS Defendants’
motion for IFP status.
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 the supporting financial affidavit, Defendant Melvin Hale does not
indicate his age. He does, however, state that he is married with only his spouse,
Defendant Angelica Hale, listed as a dependent. (Doc. 3-1, sealed, at 2.)
Defendants are currently unemployed. Defendant Melvin Hale most recently
worked for Emporia State University as an assistant professor, making a significant
monthly wage. (Id., at 2.) Defendants have been “diligently looking for work, but
nothing has materialized.” (Id., at 4.)
Defendants list a modest monthly income from “pension, annuity, or life
insurance payments.” (Doc. 3, sealed; Doc. 3-1, sealed, at 3.) They own two
modest automobiles, both in Defendant Melvin Hale’s name, with little or no
equity. (Doc. 3-1, sealed, at 2.) Defendants do not own real property and have no
permanent residence at the present time, having been evicted. (Id., at 1.) They
indicate that they are “staying with different friends.” (Id.) They indicate a small
amount of cash on hand. (Id., at 3.)
Defendants list the typical monthly expenses, including reasonable amounts
for car payments, groceries, gas, automobile insurance, and child support. (Id., at
3.) They also list significant consumer debt and student loans. (Id., at 3-4.) The
amount they owe on monthly bills clearly outweighs their current income.
Considering all of the information contained in the financial affidavit, the
Court finds that Defendants have established that their access to the Court would
be significantly limited absent the ability to file this action without payment of fees
and costs. The Court GRANTS Defendants leave to proceed in forma pauperis
(Doc. 3, sealed).
IT IS THEREFORE ORDERED that Defendants’ motion for IFP status
(Doc. 3) is GRANTED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 6th day of March, 2017.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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