Galt Ventures, Inc. v. Nolan

Filing 5

MEMORANDUM AND ORDER granting 3 Motion for Leave to Proceed in forma pauperis. This document also serves as the Report & Recommendation to the District Court of Dismissal of the Notice of Removal 1 . The document is included in the Court's docketing system as two entries for administrative/tracking purposes. Signed by Magistrate Judge Kenneth G. Gale on 10/12/17. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GALT VENTURES, INC. d/b/a
SPEEDY CASH #60,

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Plaintiff,
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vs.
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MARQUES V. NOLAN,
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Defendant. )
)

Case No. 17-1206-JTM-KGG

ORDER ON MOTION TO PROCEED
WITHOUT PREPAYMENT OF FEES AND
REPORT & RECOMMENDATION OF DISMISSAL
Pro se Defendant Marques V. Nolan removed the underlying state court
Petition to federal court. (Doc. 1, Notice of Removal.) Thereafter, Defendant
filed a Motion for Leave to Proceed In Forma Pauperis (Doc. 3, sealed). After
review of Defendant’s motion, as well as the removal pleadings and state court
Petition, the Court GRANTS IFP application, but RECOMMENDS that the
District Court dismiss Defendant’s claims in their entirety.
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). “Proceeding in forma pauperis in a civil case ‘is a

privilege, not a right – fundamental or otherwise.’” Barnett v. Northwest School,
No. 00-2499, 2000 WL 1909625, at *1 (D. Kan. Dec. 26, 2000) (quoting White v.
Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998)). The decision to grant or deny
in forma pauperis status lies within the sound discretion of the court. Cabrera v.
Horgas, No. 98-4231, 1999 WL 241783, at *1 (10th Cir. Apr. 23, 1999).
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, Defendant indicates he is 31 years old
and single with no dependants. (Doc. 3-1, sealed, at 1-2.) He lists a current
employer but indicates “$0” as his current monthly income. (Id., at 2.) He owns
no real property. (Id., at 3.) He states that he is homeless, but lives with an aunt
“from time to time.” (Id., at 5.) He states he does not own an automobile, but lists
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a car with a modest present value and no amount owed on it. (Id., at 4.)
Defendant lists no cash on hand and no government benefits. (Id.) He has
typical monthly expenses including groceries, utilities, and automobile insurance.
(Id., at 5.) He also indicates that he has an outstanding student loan of an
undetermined amount. (Id.) He has not filed for bankruptcy. (Id. at 6.)
Considering all of the information contained in his financial affidavit, the
Court finds that Defendant 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 thus GRANTS Defendant leave to proceed in forma
pauperis. (Doc. 3, sealed.)
III.

Sufficiency of Complaint.
When a party 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.

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28 U.S.C. §1915(e)(2).1 Additionally, Fed. R. Civ. P. 12(h)(3) requires the Court
to dismiss the case “[i]f the court determines at any time that it lacks
subject-matter jurisdiction.” King v. Huffman, No. 10-4152-JAR, 2010 WL
5463061, at *1 (D. Kan. Dec. 29, 2010).
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
pleading 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 of
Defendant’s well-pleaded facts and will draw all reasonable inferences from those
facts in his favor. See Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006).

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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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The Court will also liberally construe his pleadings. See Jackson v. Integra Inc.,
952 F.2d 1260, 1261 (10th Cir.1991); Hall, 935 F.2d at 1110. This does not
mean, however, that the Court must become an advocate for the pro se party.
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 party’s allegations means that “if the court
can reasonably read the pleadings to state a valid claim on which the [pro se party]
could prevail, it should do so despite [his] 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 [the party’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, [the pro se party] 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
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1974).
Although a complaint generally need not plead detailed facts, Fed.R.Civ.P.
8(a), it must give the answering party sufficient notice of the claims asserted 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 Defendant’s state court pleadings (Docs. 1, 4)
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.
It is apparent to the Court that this lawsuit is an improper attempt overturn
the judgment of the state court. The Notice Of Removal specifically states, in all
caps at the bottom of each page, that the purpose of the filing is to “VACATE &
SET ASIDE JUDGMENT.” (See generally Doc. 1.) While Defendant cloaks his
claims with various alleged violations of federal law, the case is basically an
appeal of a state court judgment, which is prohibited by the Rooker6

Feldman doctrine. See Fellows v. State of Kansas, 2005 WL 752129, at *3 (citing
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983);
Rooker v. Fidelity Trust Co., 263 U.S. 413, 415–16 (1923)). Simply stated, the
Rooker-Feldman doctrine bars “a party losing in state court . . . from seeking what
in substance would be appellate review of the state judgment in a United States
[trial] court.” Johnson v. De Grandy, 512 U.S. 997, 1005–06, 114 S.Ct. 2647,
129 L.Ed.2d 775 (1994). As such, the undersigned Magistrate Judge
recommends that the District Court DISMISS this action.
Even assuming the case could proceed substantively, dismissal is also
warranted because the removal is untimely. Pursuant to 28 U.S.C. §
1446(b)(2)(B), Defendant was required to remove this action within 30 days of
receipt of the state court Petition. The underlying state court Petition (Doc. 4) was
filed in November 2012, and Defendant’s pleading describes a judgment against
him dated December 5, 2012. (Doc. 1, at 4). More than four and half years after
the filing of the case, Defendant is clearly out of time for proper removal. The
undersigned Magistrate Judge thus recommends that the District Court DISMISS
this action.

IT IS THEREFORE ORDERED that Defendant’s motion to proceed IFP
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(Doc. 3, sealed) is GRANTED.
IT IS THEREFORE RECOMMENDED to the District Court that the
Complaint (Doc. 1) be DISMISSED based on futility and the failure to state a
claim upon which relief may be granted.
IT IS THEREFORE ORDERED that a copy of the recommendation shall
be sent to Defendant via certified mail. Pursuant to 28 U.S.C. §636(b)(1),
Fed.R.Civ.P. 72, and D.Kan. Rule 72.1.4, Defendant 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. Defendant’s failure to file such written, specific
objections within the fourteen-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 12th day of October, 2017.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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