Smith v. Wesley Medical Center et al
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WESLEY MEDICAL CENTER,
Case No. 11-1364-JTM-KGG
ORDER ON MOTION TO PROCEED WITHOUT PREPAYMENT OF
FEES, MOTION FOR APPOINTMENT OF COUNSEL AND
REPORT & RECOMMENDATION FOR DISMISSAL
In conjunction with her federal court Complaint alleging employment
discrimination, Plaintiff Gretta Smith has filed a Motion to Proceed Without
Prepayment of Fees (IFP Application, Doc. 4, sealed), with an accompanying
Affidavit of Financial Status (Doc. 4-1). She also has filed a Motion for
Appointment of Counsel. (Doc. 3.) Having reviewed Plaintiff’s motions, as well
as her Complaint (Doc. 1), the Court is prepared to rule.
Motion to Proceed In Forma Pauperis
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 her supporting financial affidavit, Plaintiff indicates she is 44 years old
and divorced. (Doc. 4-1, at 1.) She lists two “dependents,” but both of them are 18
years of age or older. (Id., at 2.)
Plaintiff is currently unemployed and was most recently employed by
Defendant, earning a sizeable weekly wage. (Id., at 2-3.) Modest weekly
unemployment benefits are her only current source of income. (Id., at 4.)
Plaintiff owns her home, in which she has equity. (Id., at 3.) She does,
however, have a reasonable monthly mortgage payment. She also owns two
automobiles outright, in which she has a sizeable amount of equity. (Id., at 4.) She
indicates no cash on hand. (Id., at 4.) Plaintiff also enumerates reasonable
monthly expenses, including utilities, gas, telephone, cable, automobile insurance,
and groceries. (Id.) Se has never filed for bankruptcy.
Considering all of the information contained in the financial affidavit,
Plaintiff has significant yet reasonable monthly expenses with no current income
other than unemployment benefits. Her expenses appear to exceed this income.
Given these circumstances, the Court finds that Plaintiff has established that she is
entitled to file this action without payment of fees and costs. Therefore, the Court
GRANTS Plaintiff leave to proceed in forma pauperis and directs that this case be
filed without payment of a filing fee.
Motion for Appointment of Counsel.
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.
While the Court has found that Plaintiff cannot afford counsel (see § I,
above), she has not diligently searched for counsel. (See Doc. 3.) The form
motion to appoint specifically lists spaces for six attorneys to be contacted.
Plaintiff has only contacted four. Often, the Court will require a plaintiff to contact
the requisite number of attorneys before ruling on a motion to appoint counsel. In
the present case, the Court finds this to be unnecessary given the remaining
Castner factors – Plaintiff’s capacity to represent herself and the merits of her case.
979 F.2d at 1420-21.
In considering Plaintiff’s capacity to represent herself, 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
employment discrimination case are not unusually complex. See 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 “not
complex”). The Court sees no basis to distinguish Plaintiff from the many other
untrained individuals who represent themselves pro se in Courts throughout the
United States on any given day. Further, although Plaintiff is not trained as an
attorney, and while an attorney might present her case more effectively, this fact
alone does not warrant appointment of counsel.
Finally, the Court has serious concerns about the viability of Plaintiff’s
claims. This subject is addressed in the final section of this Order.
Sufficiency of Complaint and R&R for Dismissal.
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.
28 U.S.C. §1915(e)(2). Section 1915 of Title 28, United States Code, requires
dismissal of a case filed under that section if the 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. 28
U.S.C. §1915(e)(2).1 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),
Courts have held that the screening procedure set out in § 1915(e)(2) applies to
all litigants, prisoners and non-prisoners alike, regardless of their fee status. See e.g.,
Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999); McGore v. Wigglesworth, 114 F.3d
601, 608 (6th Cir. 1997).
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 defendants sufficient notice of the claims asserted by the
plaintiff so that they can provide an appropriate answer. Monroe v. Owens, Nos.
01-1186, 01-1189, 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 she has failed to state a claim upon
which relief may be granted, the Court is compelled to recommend that the action
It is well-settled that a plaintiff must exhaust her administrative remedies
before bringing a discrimination suit under Title VII and/or the Americans with
Disabilities Act. Aramburu v. Boeing Co., 112 F.3d 1398, 1409 (10th Cir.1997).
The filing of an administrative charge of discrimination with an agency such as the
EEOC or KHRC is a prerequisite to this court's jurisdiction to hear a discrimination
claim. Jones v. Runyon, 91 F.3d 1398, 1399-1400 n. 1 (10th Cir. 1996); Shikles v.
Sprint/United Management Co., 426 F.3d 1304, 1317 (10th cir. 2005). The Court
is satisfied that Plaintiff has exhausted her administrative remedies as she has
included her administrative filings, correspondence and reports from the
EEOC/KHRC, and her right-to-sue letters as part of her Complaint. (See Doc. 1, at
24-39.) These documents, however, identify a fatal flaw with Plaintiff’s case.
A plaintiff must also file her lawsuit in federal court within a stated period of
time after the EEOC has closed its file and issued its right-to-sue letter. Plaintiff
received two right-to-sue letters from the EEOC. The first is dated November 12,
2008 (Doc. 1, at 29), and the other dated on August 27, 2010 (id., at 39). Plaintiff
did not file her federal court Complaint until November 28, 2011 – more than 450
days after she received her most-recent notice of right-to-sue from the EEOC. The
notification from the EEOC clearly and unequivocally states: “Your lawsuit must
be filed WITHIN 90 DAYS of your receipt of this notice or your fight to sue
based on this charge will be lost.” (See Doc. 1, at 29, 39 (emphasis in original).)
Courts in this District have specifically discussed the strictness of this 90day deadline.
Compliance with the ninety-day requirement is a
statutory precondition that functions like a statute of
limitations. Gonzalez–Aller Balseyro v. GTE Lenkurt,
Inc., 702 F.2d 857, 859 (10th Cir.1983). When the
defendant denies that the precondition has been fulfilled,
the burden is on plaintiff to prove that suit was filed
within the required period. Jackson v. Seaboard Coast
Line R. Co., 678 F.2d 992, 1010 (11th Cir.1982). By
requiring a relatively short filing period, Congress
intended for claimants to act efficiently and without
unnecessary delay. Harvey v. City of New Bern Police
Dep't, 813 F.2d 652, 654 (4th Cir.1987). “There is no
reason to invite abuse of a clear Title VII provision,
especially where the flexibility to consider equitable
factors would obviate any potential unfairness to a
litigant.” Million v. Frank, 47 F.3d 385, 388 (10th
Cir.1995). Cf., Baldwin County Welcome Center v.
Brown, 466 U.S. 147, 148, 104 S.Ct. 1723, 1724, 80
L.Ed.2d 196 (1984) (filing complaint 96 days after
issuance of right-to-sue letter did not satisfy ninety-day
requirement); Mosley v. Pena, 100 F.3d 1515, 1518 (10th
Cir.1996) (filing complaint 94 days after plaintiff's
attorney received right-to-sue letter did not satisfy
Young v. Desco Coatings of Kansas, Inc., 179 F.R.D. 610, 613 (D.Kan. 1998). In
the present case, Plaintiff did not even approach the 90-day deadline. Rather, as
stated previously, she waited some 450 days to file her Complaint.
While it is possible that Plaintiff received a more recent right-to-sue letter
(one that could fall within the 90 day deadline to file suit), no such letter was
attached to Plaintiff’s Complaint. Further, the events described in her Complaint
occurred from 2008-2010. (See Doc. 1, at 8.) Her Complaint also indicates that
the only EEOC charges she filed were in 2008 and 2010. (Id.) Based on the
information presented to the Court – and while reviewing that information in the
light most favorable to Plaintiff – the August 2010 right-to-sue letter is the mostrecently issued letter to Plaintiff. Therefore, Plaintiff’s Complaint was not timely
filed and it cannot meet the Rule 12(b)(6) sufficiency standard. See Kay, 500 F.3d
at 1217-18. This Court therefore RECOMMENDS to the District Court that
Plaintiff’s case be DISMISSED.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Proceed
Without Prepayment of Fees (Doc. 3, sealed) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Appoint Counsel
(Doc. 4, sealed) is DENIED.
FURTHER, IT IS RECOMMENDED that this case be DISMISSED for
failure to state a claim upon which relief can be granted pursuant to 28 U.S.C.
IT IS FURTHER ORDERED that the clerk need not serve the Complaint
upon Defendants. See Henriksen v. Bentley, 644 F.2d 852 (10th Cir. 1981).
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 ten 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, her written objections to the findings of fact, conclusions of law, or
recommendations of the magistrate judge. A party’s failure to file such written,
specific objections within the ten-day period will bar appellate review of the
proposed findings of fact, conclusions of law, and the recommended disposition.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 30th day of November, 2011.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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