Nolan-Bey v. Hansen et al

Filing 4

MEMORANDUM AND ORDER granting 3 Motion for Leave to Proceed in forma pauperis. This document also serves as the Report & Recommendation of Dismissal of Plaintiff's Complaint 1 to the District Court. 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
MARQUES V. NOLAN,

)
)
Plaintiff,
)
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vs.
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WILLIAM D. HANSEN, et al.,
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Defendant. )
)

Case No. 17-1214-EFM-KGG

ORDER ON MOTION TO PROCEED
WITHOUT PREPAYMENT OF FEES AND
REPORT & RECOMMENDATION OF DISMISSAL
In conjunction with his federal court Complaint (Doc. 1), Plaintiff Marques
Nolan has also filed a Motion for Leave to Proceed In Forma Pauperis (Doc. 3,
sealed). After review of Plaintiff’s motion, as well as his Complaint, the Court
GRANTS IFP application, but RECOMMENDS that the District Court dismiss
his 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, Plaintiff 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 a car
(registered to another individual) with a modest present value and no amount owed
on it. (Id., at 4.)
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Plaintiff 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, which he describes as “unlawfully.” (Id.) He has not filed
for bankruptcy. (Id. at 6.)
Considering all of the information contained in his 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 thus GRANTS Plaintiff leave to proceed in forma pauperis.
(Doc. 3, sealed.)
II.

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. 28

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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
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
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

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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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Cir.2006). 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 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, [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.
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Supp.2d at 1260 (citing Bell Atlantic Corp. v. Twombly, 127 S.Ct. at 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, 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 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.
Plaintiff’s Complaint contains an abundance of allegations and citations to
legal authority. It is, however, lacking a coherent narrative setting forth what the
case is about. Construing the Complaint liberally, Plaintiff seems to allege
violations of federal law regarding a student loan. Plaintiff concedes that he and
his mother “signed a contract for a school loan” at Butler Community College with
Commerce Bank as the lender and Sallie Mae as the guarantor. (Doc. 1, at 3.) The
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student loan was apparently transferred at some point from Commerce Bank/Sallie
Mae to West Management, Inc. and Navient Corp., which subsequently turned
over the loan to Pioneer Credit Recovery Inc. and United Student Aid Fund. (Id.,
at 3-4.) Apparently, his nonpayment of the loan ultimately led to his wages being
garnished. (Id., at 4-5.)
Plaintiff states that he “has no problem paying back the loan to the original
contractor holder of the original contract.” (Id., at 4.) Plaintiff merely seems to be
contending that the transfer of the loan to another financial entity was somehow
invalid or illegal. Based on the allegations contained in Plaintiff’s Complaint,
however, there is no factual or legal basis for the Court to find that the transfer was
improper.
In addition, the fact that Plaintiff mentions a garnishment leads the Court to
surmise that there was an underlying judgment entered against him in another
proceeding, likely in state court. Although Defendant fills his Complaint with
alleged violations of federal law, the case is basically an appeal of a state court
judgment, which is prohibited by the Rooker-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
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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).
Even assuming that the garnishment was rendered in a federal court
proceeding, any claim that the transfer of the student loan was improper should
have been raised in that underlying action. Even construing the Complaint in the
light most favorable to Plaintiff, the Court cannot surmise a valid cause of action
from the allegations set forth. As such, the undersigned Magistrate Judge
recommends that the District Court DISMISS this action.

IT IS THEREFORE ORDERED that Plaintiff’s motion to proceed IFP
(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 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

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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 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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