Allen v. Walden University

Filing 5

MEMORANDUM AND ORDER granting 3 Motion for Leave to Proceed in forma pauperis. The Court will, under seperate docket heading, also include this Memorandum and Order as the undersigned Magistrate Judge's REPORT & RECOMMENDATION for DISMISSAL to the District Court. Signed by Magistrate Judge Kenneth G. Gale on 6/6/14. Mailed to pro se party Mike Allen by regular mail. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MIKE ALLEN,
Plaintiff,
vs.
WALDEN UNIVERSITY, et al.,
Defendant.

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Case No. 14-1097-EFM-KGG

MEMORANDUM & ORDER ON IFP STATUS AND
REPORT & RECOMMENDATION FOR DISMISSAL
Plaintiff Mike Allen has filed a federal court Complaint, based on diversity
jurisdiction, alleging national origin (Syrian) discrimination relating to grades he
received in a graduate course. (Doc. 1.) In conjunction with his Complaint,
Plaintiff filed an Application for Leave to File Action Without Prepayment of Fee,
Costs, or Security (IFP Application, Doc. 3, sealed), including an Affidavit of
Financial Status. Having reviewed Plaintiff’s motion, as well as his financial
affidavit and Complaint, the Court GRANTS Plaintiff’s motion, but
RECOMMENDS that the District Court DISMISS Plaintiff’s claims pursuant to
28 U.S.C. §1915(e)(2) for failure to state a claim for which relieve may be granted.
I.

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 his supporting financial affidavit, Plaintiff indicates he is 50 years old and
single with no dependants. (Doc. 3-1, sealed, at 1-2.) Plaintiff is currently
unemployed, but previously worked security earning a moderate weekly wage.
(Id., at 2-3.) He lists no unemployment benefits or any other form of income or
government assistance in the past twelve months. (Id., at 3-5.) He does not own
real property, but does own a vehicle with a small amount of stated value. (Id., at
3- 4.) He indicates a small amount of cash on hand. (Id., at 4.) He enumerates the
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typical monthly expenses, including rent, certain utilities, telephone, and gas. (Id.,
at 5.) He indicates has previously filed for bankruptcy. (Id., at 6.)
Considering all of the information contained in the financial affidavit, the
Court has concerns as to how Plaintiff is able to meet his monthly expenditures
with no stated income or government assistance. Given the Court’s
recommendation of dismissal, however, the Court will not require Plaintiff to
provide additional explanation of his financial situation. The undersigned
Magistrate Judge GRANTS Plaintiff’s motion for IFP status (Doc. 3).
II.

Sufficiency of Complaint and Recommendation for Dismissal.
Pursuant to 28 U.S.C. §1915(e)(2), a court “shall dismiss” an in forma

pauperis case “at any time if the court determines that . . . the action or appeal –
(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who is immune from
such relief.” “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.” Mitchell v. Deseret Health Care Facility, No. 13-1360-RDR-KGG,
2013 WL 5797609, at *1 (D. Kan. Sept. 30, 2013).1 The purpose of § 1915(e) is

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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.,
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“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), 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

Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999); McGore v. Wigglesworth, 114 F.3d
601, 608 (6th Cir. 1997).
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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.
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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
be dismissed.
Plaintiff, who is a citizen of Kansas, brings his claims against Defendants
who are citizen of Minnesota based on diversity jurisdiction. (See Doc. 1, at 1-2.)
In his form Complaint, he marks the line indicating that the case “arises because of
violation of the civil or equal rights, privileges, or immunities accorded to citizens
of, or persons within the jurisdiction of, the United States (28 U.S.C. § 1343).”
(Id., at 3.) He also marks the line for “other grounds,” contending that he is the
victim of national origin discrimination. (Id.)
The factual basis for Plaintiff’s claim, however, is suspect at best. He
contends that he was given an incorrect grade on certain coursework by officials of
Defendant Walden University, a private, for-profit, on-line university, which
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resulted in him being removed from the program. (Id., at 3-4; Doc. 4, at 1.)
Plaintiff also contends that Defendant blocked his attempts to appeal the grade at
issue. (Id.) Plaintiff has not, however, plead that Defendant is an agency of a State
(subject to the Fourteenth Amendment of the United States Constitution), an
agency of the United States government (subject to the Fifth Amendment), his
employer (subject to 42 U.S.C. § 2000e), or a federally-assisted program (subject
to 42 U.S.C. § 2000d).
The Court sympathizes with Plaintiff that, if true, this would be a highly
frustrating and disheartening situation. Even so, Plaintiff has not plead a viable
cause of action for national origin discrimination. The Court finds that Plaintiff
has failed to state a claim on which relief may be granted, requiring a
recommendation to the District Court of Plaintiff’s claims pursuant to 28 U.S.C.
§1915(e)(2). This Court RECOMMENDS that the case be DISMISSED.
IT IS THEREFORE ORDERED that Plaintiff’s motion for IFP status
(Doc. 3) is GRANTED.
IT IS RECOMMENDED to the District Court that Plaintiff’s Complaint be
DISMISSED for the failure to state a claim on which relief may be granted.
IT IS THEREFORE ORDERED that a copy of the recommendation shall

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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, his written objections to the findings
of fact, conclusions of law, or recommendations of the undersigned Magistrate
Judge. Plaintiff’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 6th day of July, 2014.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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