Hopson v. Via Christi Health
MEMORANDUM AND ORDER granting 3 motion for Leave to Proceed in forma pauperis while RECOMMENDING dismissal for failure to state a claim upon which relief may be granted. For administrative purposes, this Order and Recommendation will be entered as two entries in the Court's docketing system, although there is only one Order & Recommendation document. Signed by Magistrate Judge Kenneth G. Gale on 1/13/15. Mailed to pro se party Rita Hopson by regular mail. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
VIA CHRISTI HEALTH,
Case No. 14-1412-JTM-KGG
MEMORANDUM & ORDER ON
MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES and
REPORT & RECOMMENDATION OF DISMISSAL
In conjunction with her federal court Complaint1 alleging wrongful
employment discharge and discrimination (Doc. 1), Plaintiff Rita Hopson has 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 Plaintiff’s motion, as well as her 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.
Motion to Proceed In Forma Pauperis
Plaintiff also includes a copy of her right to sue letter from the Equal
Employment Opportunity Commission, establishing that she has exhausted her
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 separated.2
(Doc. 3-1, sealed, at 1.) She lists no dependents. (Id., at 2.) She is currently
employed as a contact negotiator, making a modest monthly wage and receiving
health insurance through her employer. (Id.) She indicates her husband is
The Court is unable to discern Plaintiff’s age from the copy of her motion that
has been electronically filed in the Court’s docketing system. Plaintiff’s age is not,
however, relevant to the Court’s analysis of this motion.
employed as a “field service engineer,” but provides no details regarding his
compensation, indicating that “due to separation, spouse refuses to provide any
information.” (Id., at 3.) She indicates they do not own real property, but lists two
automobiles registered in her husband’s name. (Id., at 3-4.) She lists no
government benefits other than unemployment compensation. (Id., at 4-5.)
Plaintiff indicates a small amount of cash on hand, as well as a larger
amount in her husband’s checking and/or savings accounts. (Id., at 4.) She pays a
significant amount for monthly rent and enumerates reasonable monthly expenses,
including utilities, gas, and telephone. (Id., at 5.) She does not indicate whether
she has filed for bankruptcy, but lists significant student loans and medical bills.
(Id., at 5-6.)
Considering all of the information contained in the financial affidavit,
Plaintiff has reasonable monthly expenses and financial obligations with somewhat
limited income. The Court finds Plaintiff has established that she is entitled to file
this action without payment of fees and costs. The Court GRANTS Plaintiff leave
to proceed in forma pauperis and directs that this case be filed without payment of
a filing fee.
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).3 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), 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,
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).
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 defendant 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
Plaintiff, who is a citizen of Kansas, brings her claims against Defendant,
which is also a citizen of Kansas. Thus, diversity is not a valid basis for federal
court jurisdiction. Plaintiff does not, however, check any of the lines in the form
Complaint for bases of jurisdiction other than diversity. (See Doc. 1, at 3.)
In her statement of claim, Plaintiff succinctly alleges, “I was wrongfully
discharged from Via Christi[. T]wo [C]aucasian females reported I allegedly
threatened and intimidated them. This was never proven or investigated. I do
believe my rights have been violated.” (Id.) The factual basis for Plaintiff’s claim
fails to state a claim upon which relief may be granted. There is no allegation that
the termination of her employment was motivated by a protected class such as race,
sex, age, nationality, or religious affiliation. In fact, Plaintiff does not even allege
that she belongs to any protected category.
The Court sympathizes with Plaintiff that, assuming the allegations
contained in her Complaint to be true, this is a highly frustrating and disheartening
situation. Even so, based on the information presented in her Complaint, Plaintiff
has not plead a viable federal court cause of action. 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 to the District Court that the case be
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. The
Clerk’s office shall not proceed to issue summons in this case at the present time.
IT IS THEREFORE ORDERED that 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, 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 13th day of January, 2015.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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