Greene v. Sprint Nextel Corporation

Filing 4

MEMORANDUM AND ORDER granting 3 Motion for Leave to Proceed in forma pauperis. This document also serves as the RECOMMENDATION OF DISMISSAL of 1 Plaintiff's Complaint 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 1/9/18. Mailed to pro se party Cedric Greene by certified mail. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CEDRIC GREENE,

)
)
Plaintiff,
)
)
vs.
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SPRINT NEXTEL CORP.,
)
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Defendant. )
)

Case No. 18-1005-EFM-KGG

MEMORANDUM & ORDER ON
MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES AND
REPORT & RECOMMENDATION FOR DISMISSAL
In conjunction with his federal court Complaint (Doc. 1), Plaintiff Cedric
Greene has also filed a short form Application to Proceed Without Prepaying Fees
or Costs (“IFP application,” Doc. 3, sealed). After review of Plaintiff’s motion, as
well as the Complaint, the Court GRANTS the IFP application but recommends
Plaintiff’s claims be dismissed for failure to state a viable federal cause of action.
A.

Motion to Proceed IFP.
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 the supporting financial affidavit, Plaintiff indicates he is “not employed
due to medical reasons.” (Doc. 3, sealed, at 1.) He indicates he “obtains assistance
within the SSI program.” (Id.) Plaintiff apparently owns no real property and does
not own an automobile. (Id., at 2.) Plaintiff lists no cash on hand. (Id.) He pays a
modest monthly amount for housing through a government program and receives
government assistance for transportation and utilities. (Id.) He indicates that his
other monthly expenses “varies.” (Id.)
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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.)
B.

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).
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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,
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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 (Doc. 1) and construing
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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 a claim against Defendant Sprint for “negligent infliction of
emotional distress.” (Doc. 1.) He alleges that he
served legal documents to Sprint requesting information
for a case he had pending for a Court within the West
District of Los Angeles County, California. In reply to
the Court document, Sprint intentionally falsified a legal
document indicating that no records were found for the
telephone that our litigant had requested them to provide
in his legal papers. Sprint then refuse to provide
anything to Greene or the West District of Santa Monica
when he requested that they provide the information.
Sprint knowingly and intentionally falsified a legal
document to protect a person who had damaged him and
caused harm.
(Doc. 1, at 3.)
Clearly, the events at issue occurred, and/or are related to litigation, in the
state of California. Plaintiff brings the claims in the District of Kansas, however,
after attempting to file in California, Nevada, and Utah. (Id., at 2.) He contends
that he has been labeled a “vexatious litigant” and has had filing restrictions placed
on him by the state and federal courts of both California and Nevada. (Id., at 2.)
Additional restrictions have apparently been placed on him by “the Utah Court
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system” after he attempted to file in that jurisdiction as well. (Id.) Plaintiff has
now chosen the District of Kansas as his fourth attempted jurisdiction. He
contends that Sprint’s “major headquarters is located within Johnson County” and
he “has a wife that has family in Wichita, Kansas.” (Id., at 3.)
The Court finds that Plaintiff has failed to state a claim for which relief can
be granted under the facts alleged. There is no independent tort of negligent
infliction of emotional distress under California law, see Jackson v. Mayweather,
10 Cal. App. 5th 1240 (March 27, 2017), and Plaintiff has not sufficiently alleged a
claim for negligence. Further, any claim or controversy regarding the production
of documents requested in a “case [Plaintiff] had pending for a Court within the
West District of Los Angeles County, California” should be addressed and
resolved with that court. Finally, Plaintiff has failed to meet the jurisdictional
requirements of U.S.C.A. § 1332(a) in that the amount in controversy does not
exceed the sum or value of $75,000. (See Doc. 1, at 4 (seeking “a demand for a
judgment in the amount of $60,000.00.”) The undersigned Magistrate Judge thus
recommends to the District Court that Plaintiff’s claims be DISMISSED in their
entirety.

IT IS THEREFORE ORDERED that Plaintiff’s motion for IFP status
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(Doc. 3) is GRANTED.
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, any 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 9th day of January, 2018.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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