Marshall et al v. Burnley et al

Filing 5

MEMORANDUM AND ORDER granting 3 Motion for Leave to Proceed in forma pauperis; granting 4 Motion for Leave to Proceed in forma pauperis. This Document also serves as the Report & Recommendation to the District Court of Dismissal of certain of Plaintiffs' claims and of certain Defendants. The document is included in the Court's docketing system as 2 separate documents for administrative/tracking purposes. Signed by Magistrate Judge Kenneth G. Gale on 5/23/17. Mailed to pro se party Krystal Marshall, Milton Davison by regular mail. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KRYSTAL MARSHALL and
MILTON DAVISON,

)
)
Plaintiffs, )
)
vs.
)
)
BREAKING BENJAMIN, et al.,
)
)
Defendants. )
)

Case No. 17-1090-JTM-KGG

MEMORANDUM & ORDER ON
MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES and
REPORT & RECOMMENDATION FOR DISMISSAL
OF CERTAIN CLAIMS AND DEFENDANTS
Plaintiffs’ federal court Complaint, filed jointly and pro se, brings various
claims against the Defendants including disability discrimination, battery, false
arrest, civil conspiracy, outrage, and violations of their constitutional rights. (See
generally Doc. 1.) In conjunction with their federal court Complaint, Plaintiffs
have each filed a Motion to Proceed Without Prepayment of Fees (IFP
Applications, Docs. 3 and 4, sealed), with accompanying Affidavits of Financial
Status (Docs. 3-1 and 4-1, sealed). Having reviewed Plaintiffs’ motion, as well as
their accompanying financial affidavits and joint Complaint, the Court GRANTS
both Plaintiffs’ motions for IFP status. The Court does, however, recommend that
Plaintiffs’ claims against certain Defendants be dismissed for failure to state a

viable federal cause of action.
DISCUSSION
I.

Motion to Proceed Without Prepayment of Fees.
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 Krystal Marshall indicates she
is 40 years old and single with no dependents. (Doc. 3-1, sealed, at 1-2.) She is
currently employed as the caretaker for her co-Plaintiff, earning a small monthly
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income. (Id., at 2.) She lists no other sources of income. She owns no real
property, but does own modest automobile outright, which is also titled in the
name of her co-Plaintiff. (Id., at 3-4.)
Plaintiff Marshall lists significant monthly monthly expenses, including rent,
groceries, gas, insurance, telephone, and utilities, which far exceed her stated
monthly income. (Id., at 5.) Given their shared address, the Court surmises the
amount listed for rent is for both Plaintiffs jointly. She has never filed for
bankruptcy. (Id., at 6.)
Plaintiff Milton Davison indicates he is 65 years old and separated with no
dependents; he does not know the location of his estranged spouse. (Doc. 4-1,
sealed, at 1-2.) He is not employed but receives month Social Security benefits.
(Id., at 2, 4.) He lists no other sources of income. He owns no real property, but
does own the aforementioned automobile outright. (Id., at 3-4.)
Plaintiff Davison lists typical monthly expenses in virtually the same
amounts as his co-Plaintiff. (Compare Doc. 3-1, at 5 to Doc. 4-1, at 5.) The Court
surmises they are shared expenses, particularly given Plaintiff Marshall’s limited
income. Plaintiff Davison has never filed for bankruptcy. (Id., at 6.)
Considering all of the information contained in the financial affidavit, the

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Court finds that Plaintiffs have established that their access to the Court would be
significantly limited absent the ability to file this action without payment of fees
and costs. The Court GRANTS Plaintiffs leave to proceed in forma pauperis
(Doc. 3, sealed; Doc. 4, sealed).
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). 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
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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,
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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 Plaintiffs’ Complaint and construing the
allegations liberally, if the Court finds that he has failed to state a claim upon
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which relief may be granted, the Court is compelled to recommend that the action
be dismissed.
Plaintiffs have named a long list of Defendants in this action. (See Doc. 1, at
1-2.) Two of the Defendants are not, however, mentioned anywhere in the factual
allegations or in the context of the legal assertions contained in Plaintiffs’
Complaint – Brian D. Caplan (attorney for Breaking Benjamin) and “Kansas Bar
Association Employee Lauree.” (See generally Doc. 1.) Thus, the Court is unable
to glean any viable cause of action against these two Defendants arising out of the
allegations stated by Plaintiffs. The Court recommends that the District Court
dismiss these two Defendants from this case.
Plaintiffs have also failed to allege sufficient facts to state a claim which is
plausible – rather than merely conceivable – as to Defendant Correctional Care
Solutions. See Fisher, 531 F. Supp.2d at 1260. Plaintiffs obliquely contend that
the actions of “an additional Defendant CCS unidentified female employee”
constitute “the attempted murder elimination of witness Plaintiff MJD on
September 3-4, 2016 . . . .” (Doc. 1, at 11.) The Complaint alleges that Plaintiff
Davison attended the Dueling Piano Bar on that date and was “served . . . with
alcohol; and then later kick him out [sic] because his disabilities became
‘disturbing’ to a customer.” (Id., at 7.) The Complaint does not, however, allege
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how this relates to Correctional Care Solutions and/or its employees. Nothing in
the Complaint links this Defendant with these events.
Plaintiffs also state that “CCS was attempting to drug [Davison] to death.”
(Id.) This factually unsupported statement does not, on its face, provide the
potential Defendant with sufficient notice of the claims asserted so that Defendant
could provide an appropriate answer. Monroe, 2002 WL 437964. The Court thus
recommends that the District Court dismiss Defendant Correctional Care
Solutions from this case.

IT IS THEREFORE ORDERED that Plaintiffs’ motion for IFP status
(Docs. 3 and 4) are GRANTED.
IT IS RECOMMENDED to the District Court that Plaintiffs’ claims
against Defendants Correctional Care Solutions, Brian D. Caplan, and “Kansas Bar
Association Emoployee Lauree” be dismissed.
IT IS THEREFORE ORDERED that a copy of the recommendation shall
be sent to Plaintiffs via certified mail. Pursuant to 28 U.S.C. §636(b)(1),
Fed.R.Civ.P. 72, and D.Kan. Rule 72.1.4, Plaintiffs shall have fourteen (14) days
after service of a copy of these proposed findings and recommendations to serve

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and file with the U.S. District Judge assigned to the case, their written objections to
the findings of fact, conclusions of law, or recommendations of the undersigned
Magistrate Judge. Plaintiffs’ 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 23rd day of May, 2017.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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