Cochran v. Oklahoma, State of

Filing 5

MEMORANDUM AND ORDER granting 3 Motion for Leave to Proceed in forma pauperis; denying 4 Motion to Appoint Counsel. This Order also serves as the REPORT & RECOMMENDATION of DISMISSAL to the District Court of Plaintiff's Complaint 1 . T he document is included in the Court's electronic filing system as two entries for docketing/tracking purposes. Signed by Magistrate Judge Kenneth G. Gale on 8/3/17. (df) Modified on 8/3/2017. The Pro Se Plaintiff is registered to receive electronic notifications. The document will not be mailed. (aa).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHAEL T. COCHRAN,

)
)
Plaintiff,
)
)
vs.
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STATE OF OKLAHOMA, et al.,
)
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Defendant. )
)

Case No. 17-1168-EFM-KGG

ORDER ON MOTION TO PROCEED
WITHOUT PREPAYMENT OF FEES AND
MOTION TO APPOINT COUNSEL, AND
REPORT & RECOMMENDATION ON FOR DISMISSAL
In conjunction with his federal court Complaint alleging violations of his
Constitutional rights, Plaintiff Michael T. Cochran 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), as well as a Motion
to Appoint Counsel (Doc. 4). Having reviewed Plaintiff’s motions, as well as his
Complaint (Doc. 1), the Court GRANTS the IFP application and DENIES the
Motion to Appoint Counsel. The Court also RECOMMENDS to the District
Court that Plaintiff’s Complaint be DISMISSED for lack of jurisdiction.
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 55 years old and
single with no dependants. (Doc. 3-1, at 1-2.) Plaintiff is currently unemployed
and homeless. (Id.) He has not received unemployment benefits or any other form
of income or government assistance in the past twelve months. (Id., at 4-5.) He
has only a small amount of cash on hand and no other financial resources.
Considering all of the information contained in the financial affidavit,
Plaintiff has established that his access to the Courts would otherwise be seriously
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impaired if he is not granted IFP status. Plaintiff’s motion for IFP is GRANTED.
II.

Motion to Appoint Counsel.
Plaintiff has also filed a motion requesting the appointment of counsel.

(Doc. 4.) There is no constitutional right to have counsel appointed in civil cases
such as this one. Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1169 (10th Cir.
2003). “[A] district court has discretion to request counsel to represent an indigent
party in a civil case” pursuant to 28 U.S.C. § 1915(e)(1). Commodity Futures
Trading Comm’n v. Brockbank, 316 F. App’x 707, 712 (10th Cir. 2008). The
decision whether to appoint counsel “is left to the sound discretion of the district
court.” Lyons v. Kyner, 367 F. App’x 878, n.9 (10th Cir. 2010) (citation omitted).
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
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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 in Section I., 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, at 2 (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 left this
portion of the motion blank, leading the Court to believe that he has contacted no
attorneys.
Often in situations such as this, before the Court will consider the
application, it will require a movant to confer with, and provide the required
information regarding, the requisite number of attorneys. The Court finds in this
instance, however, that the motion will be resolved on other factors. As such,
requiring Plaintiff to complete this task would not be useful.
The next factor is the merits of Plaintiff’s case. See McCarthy, 753 F.2d at
838-39 (10th Cir. 1985); Castner, 979 F.2d at 1421. As discussed in Section III,
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below, the Court has serious concerns regarding the viability of Plaintiff’s claims.
This factor thus weighs against the appointment of counsel. The Court’s analysis
thus turns to the final Castner factor, 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. The
Court notes that the factual and legal issues in this case are not 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”).
The Court sees no basis to distinguish Plaintiff 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 Plaintiff is not
trained as an attorney, and while an attorney might present this case more
effectively, this fact alone does not warrant appointment of counsel. As such, the
Motion to Appoint Counsel (Doc. 4, sealed) is DENIED.

II.

Sufficiency of Complaint and R&R for Dismissal.
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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.
28 U.S.C. §1915(e)(2). Section 1915 of Title 28, United States Code, requires
dismissal of a case filed under that section if the court determines that the action
(1) is frivolous or malicious, (2) fails to state a claim upon which relief may be
granted or (3) seeks monetary relief from a defendant who is immune from suit. 28
U.S.C. §1915(e)(2).1 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

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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.,
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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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
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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.
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 he has failed to state a claim upon
which relief may be granted, the Court is compelled to recommend that the action
be dismissed.
Plaintiff brings claim against the State of Oklahoma, District Attorney Brian
Hermanson (whose position is in Oklahoma), Judge Jennifer Brock (whose
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position is in Oklahoma), and various Oklahoma Highway Patrol troopers. (Doc.
1, at 1.) Plaintiff alleges that he was stopped on Oklahoma State Highway 77 by
Oklahoma Highway Patrol troopers while traveling through Oklahoma on his way
to Wichita, Kansas. (Id., at 3.) Plaintiff was driving a moped and pulling a bicycle
trailer with his personal belongings. (Id.) Plaintiff did not have a valid driver’s
license, but did have a State of Louisiana identification card. He contends that in
Louisiana, he was not required to have a driver’s license for that particular moped.
(Id.) He was cited by the Oklahoma Highway Patrol for operating a motor vehicle
without a valid driver’s license pursuant to Oklahoma state statute. (Id.) He
alleges that he was unable to attend the scheduled court appearance and was
ultimately fined; the fine was thereafter sent to collections. (Id., at 4.)
Based on the allegations stated in Plaintiff’s Complaint, all of the
Defendants are located in, employed in, and residents of Oklahoma. Further, all of
the factual allegations occurred in Oklahoma. Although Plaintiff was traveling to
Wichita, Kansas, when he was pulled over, this is not enough to bestow
jurisdiction over these individuals in the District of Kansas.
The legal standard for determining whether a case should be dismissed for
lack of personal jurisdiction is well-established.
The plaintiff bears the burden of establishing personal
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jurisdiction over the defendants. Edison Trust Number
One v. Patillo, No. 10-1159, 2010 WL 5093831, at *1
(D. Kan. Dec. 8, 2010) (quotations omitted). The
plaintiff must show that under the laws of the forum state
jurisdiction is proper, and that exercising jurisdiction
would not offend traditional notions of fair play and
substantial justice. Id. The extent of the burden depends
on the stage at which the court considers the
jurisdictional issue. Id. at 1. The plaintiff’s burden in the
preliminary stages of litigation is light and the plaintiff
must make a prima facie showing. Dudnikov v. Chalk &
Vermillion Fine Arts, 514 F.3d 1063, 1069 (10th Cir.
2008); Hutton & Hutton Law Firm, LLC v. Girardi &
Keese, 96 F. Supp. 3d 1208, 1215 (D. Kan. Mar. 31,
2015).
....
The test for personal jurisdiction first requires
asking if any applicable statute authorizes service of
process on the defendants. Dudnikov v. Chalk &
Vermilion Fine Arts, 514 F.3d 1063, 1070 (10th Cir.
2008). The second question is whether exercising
statutory jurisdiction comports with the Fourteenth
Amendment's constitutional due process demands. Id.
Kansas law authorizes service of process pursuant not a
‘long-arm’ statute. The statute corresponds directly with
the intent of constitutional limitations imposed by the
Fourteenth Amendment. Federated Rural Elect Ins.
Corp. v. Kootenai Elec. Coop., 17 F.3d 1302, 1305 (10th
Cir. 1994); Jenkins-Dyer v. Drayton, 2014 U.S. Dist.
LEXIS 148130, *7-8 (D. Kan. Oct. 16, 2014). More
precisely, if jurisdiction is consistent with due process,
the long-arm statute of Kansas grants jurisdiction over a
nonresident defendant. Jenkins-Dyer, 2014 U.S. Dist.
LEXIS 148130, at *8.
The Fourteenth Amendment's Due Process Clause
grants personal jurisdiction over a nonresident defendant
when: (1) the defendant has such “minimum contacts”
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with the forum state that they reasonably should
anticipate being haled into court there; and (2) if
minimum contacts is established with the forum state,
defending a lawsuit in the forum would not “offend
traditional notions of fair play and substantial justice.”
Dudnikov, 514 F.3d at 1070. If jurisdiction is found to
be lacking at any stage of the proceeding, the court must
dismiss the case. Scott v. Home Choice, Inc., 252 F.
Supp. 2d 1129, 1132 (D. Kan. 2003) (citing Castaneda v.
I.N.S., 23 F.3d 1576, 1580 (10th Cir. 1994)).
The exercise of personal jurisdiction over a
nonresident defendant complies with due process ‘so
long as there exists ‘minimum contacts’ between the
defendant and the forum State.’ World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 291
(1980) (quoting Int'l Shoe Co. v. Washington, 326 U.S.
310, 316 (1945)). Personal jurisdiction may be either
general or specific, depending upon the defendant's
contacts with the forum state. Bristol-Myers Squibb Co.
v. Superior Court, No. 16-466, 2017 U.S. LEXIS 3873,
at *10 (June 19, 2017). For a court to exercise general
jurisdiction, the defendant's contacts with the forum state
must be “'so continuous and systematic as to render [it]
essentially at home in the forum State.’ ’ Fireman’s
Fund Ins. v. Thyssen Mining Constr. of Can., 703 F.3d
488, 493 (10th Cir. 2012) (quoting Goodyear Dunlop
Tires Operations v. Brown, 131 S.Ct. 2846, 2851
(2011)). See also Hutton & Hutton Law Firm, LLC v.
Girardi & Keese, 96 F. Supp. 3d 1208, 1217 (D. Kan.
2015).
Berry v. Ulrich Hereford Ranch, Inc., 17-2109-JTM, 2017 WL 3130589, at *3
(D. Kan. July 24, 2017).

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For purposes of this motion, the Court considers all well-plead allegations in
Plaintiff’s Complaint to be true. Even viewing these allegations in the light most
favorable to Plaintiff, however, this Court has no personal jurisdiction over the
named Defendants. All of the factual allegations occurred in Oklahoma. The
Defendants all work in – and based on the allegations in Plaintiff’s Complaint are
presumed to be residents of – Oklahoma. None of them have the requisite
minimum contacts with the State of Kansas for this Court to exercise jurisdiction
over them. As such, the Court recommends that the District Court DISMISS
Plaintiff’s Complaint in its entirety because of a lack of personal jurisdiction over
the Defendants.

IT IS THEREFORE ORDERED that Plaintiff’s motion for IFP status is
GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Appoint Counsel is
DENIED.
IT IS RECOMMENDED to the District Court that Plaintiff’s Complaint be
DISMISSED for lack of personal jurisdiction over the Defendants.
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 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 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 3rd day of August, 2017.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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