Greene v. Housing Authority of the City of Los Angeles

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 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,

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Plaintiff,
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vs.
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HOUSING AUTHORITY OF
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THE CITY OF LOS ANGELES,
)
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Defendant. )
)

Case No. 18-1009-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 “is obtaining
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.)
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He indicates that his other monthly expenses “varies.” (Id.)
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

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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
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
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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
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
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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 a claim for negligence against Defendant Housing Authority
of the City of Los Angeles. (See generally, Doc. 1.) He alleges that he is a
“Section ‘8’ tenant who is currently under the jurisdiction of the Housing
Authority of the city of Los Angeles,” residing in Los Angeles, California. (Id., at
3.) He further alleges that the owners of his apartment “are the best ‘slum lords’ in
the housing business” and that his united has failed multiple “Section ‘8’
inspections because it was not in decent, safe, or sanitary condition.” (Id.) He
contends that the Housing Authority was negligent “by not addressing the issues of
their ‘slumlord property owner.’” (Id.)
Clearly, the events at issue occurred in the state of California. Plaintiff
alleges that he previously filed the matter in the District of Utah, resulting a
dismissal without prejudice, which he subsequently appealed to the Tenth Circuit.
(Id., at 2.) According to Plaintiff, “the Tenth Circuit affirmed the District of Utah’s
dismissal without prejudice judgment and issued a mandate;” Plaintiff’s request to
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the Tenth Circuit to “recall the mandate” was denied on October 20, 2017. (Id.)
Plaintiff then tried to re-file with the District of Utah, but was not allowed to do so.
According to Plaintiff,
[w]hat brings us to the District of Kansas is the fact that
Greene has a case already pending before it,1 and the fact
that he has more options available to him that he did not
have in other locations. Our Seattle community is also
embracing of the Kansas venue because of the options
available to the litigant that they assist. As to our
designation of trial, we will leave it open for Kansas
officials to determine the venue that it has in mind for
Greene. Wichita would always be our first option due to
the family ties that Greene’s spouse has in its city
location.
(Id.)
The Court finds that Plaintiff has failed to state a claim for which relief can
be granted under the facts alleged. Simply stated, the Court does not see how
personal jurisdiction or venue in the District of Kansas exists as to allegations
raised by a resident of Los Angeles, California against that city’s Housing
Authority. The undersigned Magistrate Judge thus recommends to the District
Court that Plaintiff’s claims be DISMISSED in their entirety.

1

The Court notes that it has recently recommended to the District Court that
Plaintiff’s other case, No. 18-1005-EMF-KGG, be dismissed in its entirely for failure to
state a claim upon which relief may be granted.
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IT IS THEREFORE ORDERED that Plaintiff’s motion for IFP status
(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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