Basic v. Boeing Corporation
MEMORANDUM AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis; denying 3 Motion to Appoint Counsel. This document also serves as the Report & Recommendation of Dismissal to the District Court. It is included in the Court's electronic filing system as two documents/events for administrative/tracking purposes. Signed by Magistrate Judge Kenneth G. Gale on 5/12/17. Mailed to pro se party Steven Basic by regular mail. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 17-1103-EFM-KGG
MEMORANDUM & ORDER ON
MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES,
MOTION FOR APPOINTMENT OF COUNSEL, AND
REPORT & RECOMMENDATION FOR DISMISSAL
In conjunction with his federal court Complaint, Plaintiff Steven Basic has
filed a Motion to Proceed Without Prepayment of Fees (IFP Application, Doc. 2,
sealed) with accompanying Affidavits of Financial Status (Doc. 2-1, sealed).1
Plaintiff has also filed a Motion for Appointment of Counsel. (Doc. 3.) Having
reviewed Plaintiff’s motions, as well as his financial affidavit and Complaint, the
Court GRANTS Plaintiff’s motion for IFP status (Doc. 2), DENIES his request
for counsel (Doc. 3), and recommends that Plaintiff’s claims be dismissed for
The Court notes that the Complaint also names Christopher Basic and Adrienna
Basic as Plaintiffs in this case. (See Doc. 1.) As the Clerk has noted, however, neither of
these individuals have signed the Complaint. (See 5/1//17 text entry.) As such, they are
not properly included as parties in this lawsuit.
failure to state a viable federal cause of action.
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 his supporting financial affidavit, Plaintiff indicates he is 82 years old and
married. He lists two dependents, but indicates their ages are 20 years old and 22
years old. (Doc. 2-1, sealed, at 2.) Because these individuals are legal adults, they
cannot be considered dependents for purposes of this motion.
Plaintiff is currently unemployed and lists the Defendant as his former
employer, from 1995 to 2004. (Id., sealed, at 2-3.) He lists current income from
Social Security as well as a modest amount from the “pensions, trust funds,
annuities or life insurance payment” category. (Id., at 4-5.) He owns his home.
(Id., at 3.) Although he lists no rent or mortgage payment (id., at 5), he indicates
that the home is not paid off (id., at 3). He also owns a modest automobile
outright. (Id., at 4.) He enumerates certain other monthly expenses, including
utilities, cable, insurance, and an unusually large grocery expense. (Id., at 5.) He
also has significant consumer debt. (Id.) He lists a small amount of cash on hand.
(Id., at 4.) He has not 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
directs that the cases be filed without payment of a filing fee.
Request for Counsel.
Plaintiff has also filed a motion requesting the appointment of counsel.
(Doc. 3.) The Tenth Circuit has identified four factors to be considered when a
court is deciding whether to appoint counsel for an individual: (1) plaintiff’s
ability to afford counsel, (2) plaintiff’s diligence in searching for counsel, (3) the
merits of plaintiff’s case, and (4) plaintiff’s capacity to prepare and present the case
without the aid of counsel. McCarthy v. Weinberg, 753 F.2d 836, 838-39 (10th
Cir. 1985) (listing factors applicable to applications under the IFP statute); Castner
v. Colorado Springs Cablevision, 979 F.2d 1417, 1421 (10th Cir. 1992) (listing
factors applicable to applications under Title VII). Thoughtful and prudent use of
the appointment power is necessary so that willing counsel may be located without
the need to make coercive appointments. The indiscriminate appointment of
volunteer counsel to undeserving claims will waste a precious resource and may
discourage attorneys from donating their time. Castner, 979 F.2d at 1421.
As discussed above, Plaintiff’s financial situation would make it impossible
for him to afford counsel. The second Castner factor is Plaintiff’s diligence in
searching for counsel. The form motion used by Plaintiff clearly indicates that he
was to “confer with (not merely contact)” at least five attorneys regarding legal
representation prior to filing the motion. (Doc. 3 (emphasis in original).) The
form provides space for the name, address, date(s) of contact, method of contact,
and response received for six attorneys. Plaintiff has written letters or called and
left messages for three attorneys, one of whom was the general counsel for Boeing,
who obviously would not be able to represent Plaintiff. (Id., at 2-3.) Regardless, it
appears from the motion that Plaintiff has not actually spoken with, or heard back
from, any of these attorneys. (Id.) He also lists the Director of the SPEAA, which
is a union of aerospace workers. Suffice it to say, Plaintiff’s efforts do not meet
the requirement of communicating with at least five attorneys, which is clearly
stated on the form motion.
Often in situations such as this, the Court will require a movant to confer
with, and provide the required information regarding, the requisite number of
attorneys before the Court will consider the application. The Court finds in this
instance, however, that the motion can be resolved on other factors. As such,
requiring Plaintiff to complete this task would not be useful.
One of the two remaining Castner factors is Plaintiff’s capacity to prepare
and present the case without the aid of counsel. 979 F.2d at 1420-21. In
considering this factor, the Court must look to the complexity of the legal issues
and Plaintiff’s ability to gather and present crucial facts. Id., at 1422. Given the
meandering narrative of Plaintiff’s pro se Complaint, the Court cannot determine
with certainty whether the factual and legal issues in this case are unusually
complex. Cf. Kayhill v. Unified Govern. of Wyandotte, 197 F.R.D. 454, 458
(D.Kan. 2000) (finding that the “factual and legal issues” in a case involving a
former employee’s allegations of race, religion, sex, national origin, and disability
discrimination were “not complex”).
As such, the Court cannot determine whether Plaintiff should be
distinguished from the many other untrained individuals who represent themselves
pro se on various types of claims in Courts throughout the United States on any
given day. Although he is not trained as an attorney, and while an attorney might
present this case more effectively, this fact alone does not warrant appointment of
The Court’s analysis will, therefore, turn on the final Castner factor – the
merits of Plaintiff’s case. See McCarthy, 753 F.2d at 838-39 (10th Cir. 1985);
Castner, 979 F.2d at 1421. For the reasons set forth in Section III, infra, the Court
finds that Plaintiff’s claims are not viable. This factor thus weighs against the
appointment of counsel and Plaintiff’s Motion to Appoint Counsel (Doc. 4) is
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 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
The Court is unable to glean any viable cause of action arising out of the
allegations stated by Plaintiff. While Plaintiff seems to be alleging employment
discrimination based on disability, the Court cannot discern all of the claims he is
intending to bring against Defendant or how such claims would be viable in federal
Court. For instance, many of the events at issue appear to have occurred more than
a decade ago and Plaintiff indicates that his employment was terminated
approximately 13 years ago. (See e.g., Doc. 1, at 10, 11, 21, 27-28, 30, 34.) As
such, Plaintiff’s claims appear to be barred by the relevant statute of limitations.
Further, Plaintiff indicates that he filed administrative charges relating to his claims
for employment discrimination, but fails to state when he did so or whether he
received a right to sue letter. (Id., at 8.) Plaintiff’s employment discrimination
claims are not viable without proof that his claims were part of a timely-filed
administrative charge of discrimination. Annett v. University of Kansas, 371 F.3d
1233, 1238 (Tenth Cir. 2004). This Court, therefore, recommends to the District
Court the dismissal of Plaintiff’s claims pursuant to 28 U.S.C. §1915(e)(2).
IT IS THEREFORE ORDERED that Plaintiff’s motion for IFP status
(Doc. 2) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s request for counsel (Doc. 3)
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 12th day of May, 2017.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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