Cardwell v. United States Department of Education, Secretary of et al

Filing 9

MEMORANDUM AND ORDER granting 3 Motion for Leave to Proceed in forma pauperis; granting 7 Motion for Reconsideration. Signed by Magistrate Judge Kenneth G. Gale on 6/5/2013. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MONTE VAUNE CARDWELL,

)
)
Plaintiff,
)
)
vs.
)
)
ARNE DUNCAN, et al.,
)
)
Defendants. )
)

Case No. 12-1475-KHV-KGG

ORDER ON AMENDED MOTION
TO PROCEED WITHOUT PREPAYMENT OF FEES
In conjunction with his federal court Complaint alleging a violation of his
civil rights resulting from the denial of his request for discharging of his federal
student loans, Plaintiff Monte Cardwell filed a Motion to Proceed Without
Prepayment of Fees (IFP Application, Doc. 3, sealed). This Court previously
recommended to the District Court that Plaintiff’s IFP motion be denied because,
based on the information initially submitted to the Court, Plaintiff’s monthly
income from Social Security appeared to exceed his monthly expenses by over a
thousand dollars. As such, the Court held that he is not in the type of financial
situation for which the IFP status was created. (Doc. 6.) Plaintiff has now filed a
motion for reconsideration and objection to that motion (Doc. 7), which the District
Court has referred back to the undersigned Magistrate for further

recommendations. (Doc. 8.)
As stated in the prior Order, 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, a 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 conjunction with the current motion, Plaintiff has provided the Court with
more detailed financial information regarding his expenses, including a consumer
debt not mentioned in his previous financial affidavit. (See Doc. 7-1, at 7-19; Doc.
3-1, at 5-6.) Considering this new information, in addition to that previously
supplied to the Court, Plaintiff has now established that his access to the Courts
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would otherwise be seriously impaired if he is not granted IFP status. Under these
circumstances, the undersigned Magistrate Judge GRANTS Plaintiff’s motion for
IFP.
IT IS THEREFORE ORDERED that Plaintiff’s Amended Motion to
Proceed Without Prepayment of Fees (Doc. 7, sealed) is GRANTED.
IT IS FURTHER ORDERED that the Clerk’s office shall proceed to issue
summons in this case.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 5th day of June, 2013.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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