Nolan-Bey v. McPherson County Court et al
MEMORANDUM AND ORDER granting 3 Motion for Leave to Proceed in forma pauperis. This document also serves as the REPORT & RECOMMENDATION of Dismissal 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 1/11/18. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
McPHERSON Co. COURT, et al.,
Case No. 17-1278-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.
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, who does not state his age,
indicates he is 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.) Plaintiff has crossed out “address” and listed an
address for “general care.” (Id., at 1.) He further states that he “lives in his body
& inhabits in the Americas; domiciles near Wichita Territory.” (Id., at 5.) He
states he does not own an automobile. (Id., at 4.)
Plaintiff lists no cash on hand and no government benefits. (Id., at 4-5.) He
has typical monthly expenses including groceries, utilities, and automobile
insurance (although he indicates he does not own an automobile). (Id., at 5.) He
also indicates that he has an outstanding student loan of an undetermined amount,
which he labels as “alleged.” (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.)
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
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
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).
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
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.
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. His IFP motion includes the following description of this case:
“Federal Question(s): ‘Conflict of Interest,’ ‘Conflict of Law’ ‘Diversity of
Citizenship;’ Racueteer [sp] influenced & corrupt organizations; Fraud; Violation
of Constitutional Rights.” (Doc. 3, sealed, at 1.)
Construing his Complaint liberally, Plaintiff seems to allege violations of
federal and constitutional law based on the search of his automobile following a
traffic stop by a Kansas Highway Patrol officer and the subsequent state court
proceedings. (Doc. 1, at 4.) Plaintiff contends that the
STATE OF KANSAS 9TH JUDICIAL MCPHERSON
COUNTY COURT is an unconstitutional, private
corporation, not delegated by Congress, under Article III,
Section 2 of the Constitution; and that the Officers does
not, and did not provide 'Due Process' protected and
secured for the People, by the Amendments IV, V, VI,
VII, VIII, IX, and X of the United States Constitution, to
which the Judges and Officers in every State is bound (by
Official Oath) to support and to uphold.
(Doc. 1, at 5.) Plaintiff continues that
[t]he Officers of STA TE OF KANSAS 9TH JUDICIAL
MCPHERSON COUNTY COURT commanded the
Claimant extort Fines and Costs Imposed under threat,
duress, and coercion with a ‘man-of-straw’/misnomer
word, misrepresented as implying my name, and typed
upon the Order/Instrument, and was improperly spelled,
‘MARQUES V. NOLAN II’ in ALL CAPITAL
LETTERS. That misnomer and CORPORATE - NAME,
‘MARQUES V. NOLAN II’ is clearly (an artificialperson/entity); is not me, the Natural Person; is a
deliberate grammatical error, intended for injury to me;
and is clearly not of consanguine relationship to Claimant
or to his nationality, in any form, truth, or manner; nor to
his Moorish Family Bloodline. This is a in violation of
Claimant’s secured rights to his name and nationality; a
violation of International Law; and a violation of the
Obligations of the Officers of the Court; and a violation
of their fiduciary duties and Official Oaths to uphold and
to support Article VI of the United States Constitution;
and thus, violating my Substantive Rights, and the
Articles of Part I of ‘The Rights of Indigenous People’ . .
(Id., at 6.)
Although Defendant fills his Complaint with references to, and alleged
violations of, federal law, the case appears to be 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
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 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
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 11th day of January, 2018.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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