Simms v. State Farm Employees and Agency et al

Filing 7

MEMORANDUM AND ORDER granting 6 plaintiff's Motion for Reconsideration re 3 MOTION for Leave to Proceed in forma pauperis filed by Franklin S. Simms. Plaintiff's claims are dismissed as frivolous. Signed by District Judge J. Thomas Marten on 12/11/2013. Mailed to pro se party Franklin S. Simms by regular mail. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
FRANKLIN S. SIMMS,
Plaintiff,
v.

Case No. 13-1391-JTM

STATE FARM EMPLOYEES AND AGENCY,
and ELMS APARTMENTS EMPLOYEES
DURING SPRING OF 2012,
Defendants.
MEMORANDUM AND ORDER
The court has before it plaintiff Franklin S. Simms’s Motion for Reconsideration
(Dkt. 6), in which he asks the court to reconsider its denial of in forma pauperis status.
The court grants the Motion for Reconsideration, grants Simms in forma pauperis
status, and dismisses the case.
Acting pro se, plaintiff Franklin S. Simms filed this case with the court on
October 16, 2013. With his complaint, Simms filed a Motion for Leave to Proceed in
forma pauperis (Dkt. 3). The court denied the motion, citing Simms’s failure to provide
a financial affidavit. See Dkt. 4. The court ordered Simms to pay the filing fee of $400.00
by November 25, 2013. The court filed this order on October 24, 2013 and mailed to the
only address Simms had provided in his complaint: General Delivery, Montego Bay,
Jamaica.
On November 18, Simms filed a Notice of Change of Address (Dkt. 5). The next
day, the court sent its October 24 order to Simms’s new address: 3100 Woods Way #2,

Gulf Breeze, Florida 32563. The court did not officially push back the November 25 due
date for Simms’s filing fee. However, recognizing that Simms may not have received
notice of the court’s October 24 order until a few days before his filing fee was due, the
court delayed entering an order dismissing the case to give Simms some additional time
to pay his fee.
On December 2, 2013, Simms filed his Motion for Reconsideration, stating that he
had mailed an affidavit showing he qualifies for in forma pauperis status. In his motion,
Simms claims he did not receive the court’s order to pay the filing fee until November
28, three days after the due date.
The court accepts Simms’s excuse. The court also notes that Simms’s motion lists
his income and assets for the court. Despite these numbers not coming in the form of an
affidavit, the court accepts them as Simms signed the pleading setting them forth.
Because of the delay in Simms’s receipt of the court order, caused by his move from
Jamaica back the United States, and because of Simms’s inclusion of the necessary
financial information, the court grants his motion and reconsiders his plea for in forma
pauperis status.
The income and assets claimed by Simms convinces the court that he is eligible
for in forma pauperis status, which the court grants. Under 28 § 1915(e)(2)(B)(i), the
district court must dismiss an in forma pauperis complaint if it is “frivolous or
malicious.” A complaint is frivolous if “it lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal is only appropriate where a

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claim is “based on an indisputably meritless legal theory.” Fogle v. Pierson, 435 F.3d
1252, 1259 (10th Cir. 2006) (quotations omitted).
Simms claims that State Farm and ELMS Apartments employees violated his
civil rights, stole his property, committed insurance fraud, and defamed and assaulted
him, entitling Simms to over $50 million in damages. He also appears to accuse this
court of corruption and of defaming him because it initially returned his civil complaint
for a lack of a civil cover sheet.
After careful review of Simms’s complaint, the court is convinced that it is
“based on an indisputably meritless legal theory.” See id. The court cannot allow
Simms’s frivolous in forma pauperis claims to proceed. See 28 § 1915(e)(2)(B)(i). The
court dismisses Simms’s claims.
IT IS THEREFORE ORDERED this 11th day of December, 2013, that Simms’s
Motion for Reconsideration (Dkt. 6) is granted.
IT IS ALSO ORDERED that Simms’s Motion to Proceed In Forma Pauperis (Dkt.
3) is granted and his claims are dismissed as frivolous.

s/J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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