Cook v. Crownover
MEMORANDUM AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis. This document also serves as the Report & Recommendation of dismissal of Plaintiff's claims to the District Court. The document is included in the Court's filing system for administrative/tracking purposes. Signed by Magistrate Judge Kenneth G. Gale on 4/14/17. Mailed to pro se party Shay Dee Cook by regular mail. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHAY DEE COOK,
Case No. 17-1059-JTM-KGG
MEMORANDUM & ORDER ON
MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES AND
REPORT & RECOMMENDATION FOR DISMISSAL
Plaintiff’s federal court Complaint alleges that Defendant “forged signatures
on quit claim deeds resulting in transferring property out of [Plaintiff’s] name
illegally and selling them.” (Doc. 1, at 3.) In conjunction with his federal court
Complaint, Plaintiff has filed a Motion to Proceed Without Prepayment of Fees
(IFP Application, Doc. 2, sealed), with an accompanying Affidavit of Financial
Status (Doc. 4, sealed). Having reviewed Plaintiff’s motion, as well as his
financial affidavit and Complaint, the Court GRANTS Plaintiff’s motion for IFP
status but recommends Plaintiff’s claims be dismissed for failure to state a viable
federal cause of action.
Motion to Proceed IFP.
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 36 years old and
single, with no dependents. (Doc. 4, sealed, at 1-2.) Plaintiff is currently
unemployed and incarcerated. (Id., at 2-3.) He lists no current income, assets or
financial liabilities. (Id., at 3-5.) He has never filed for bankruptcy. (Id., at 6.)
Considering all of the information contained in the financial affidavit, the
Court finds that Plaintiff has established that his access to the Court would be
significantly limited absent the ability to file this action without payment of fees
and costs. The Court GRANTS Plaintiff leave to proceed in forma pauperis (Doc.
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). 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,
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, 011189, 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 he has failed to state a claim upon
which relief may be granted, the Court is compelled to recommend that the action
As stated above, Plaintiff’s cause of action derives from his allegation that
Defendant “forged signatures on quit claim deeds resulting in transferring property
out of [Plaintiff’s] name illegally and selling them.” (Doc. 1, at 3.) Plaintiff is
incarcerated in the Sedgwick County, Kansas, jail. (Doc. 2, sealed, at 2.) He lists
his return address in Wichita, Kansas, and indicates Defendant is a resident of
Kansas. (See Doc. 1, at 1, 2.) Thus, there is no federal court diversity jurisdiction.
Plaintiff categorizes her claims as “property theft and forgery.” (Doc. 2, sealed, at
1.) She cites no federal statute or authority as basis for her claim. As such, 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 therefore recommends to the District Court
that the case be DISMISSED.
IT IS THEREFORE ORDERED that Plaintiff’s motion for IFP status
(Doc. 2) 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 fourteen (14) 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 14-day period will bar appellate review of the proposed findings of fact,
conclusions of law, and the recommended disposition.
IT IS SO ORDERED AND RECOMMENDED.
Dated at Wichita, Kansas, on this 14th day of April, 2017.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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