Greene v. Harris et al

Filing 5

MEMORANDUM AND ORDER granting 3 Motion for Leave to Proceed in forma pauperis; denying without prejudice 4 Motion for Leave to File Conventionally. The Court notes that this document also serves as the REPORT & RECOMMENDATION of Dismissal to the District Court. The document is included in the Court's electronic docketing system as two entries for administrative/tracking purposes. Signed by Magistrate Judge Kenneth G. Gale on 2/14/18. 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,
vs.
TERRI HARRIS, VICKI BROACH,
Defendant.

Case No. 18-1026-EFM-KGG

MEMORANDUM & ORDER ON
MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES,
MOTION TO FILE CONVENTIONALLY, 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) as well as motion requesting
permission to conventionally file some CDs with the Court Clerk (Doc. 4). 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

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viable federal cause of action. The Court also DENIES without prejudice
Plaintiff’s motion to file conventionally.1
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,

The Court notes that the District Court has recently placed filing restrictions on
Plaintiff given his pattern of frivolous filings in this District. (No. 18-1005-EFMKGG, Doc. 10, at 3-7.) The present motions were, however, filed prior to the entry of
the restrictions. As such, the Court will review them on their substantive merits.   

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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 many 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.)
Considering 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
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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).
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
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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,
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
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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
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 Defendants alleging that he “was the victim
of a ‘very serious crime’ that almost ended his life.” (Doc. 1, at 4.) The crime at
issue is alleged to have occurred in Hot Springs, Arkansas. (Id.) Thereafter, the
person who is alleged to have committed the crime returned to California “to avoid
being arrested . . . .” (Id.) Neither of the Defendants in this case are the individual
who allegedly committed the crime against Plaintiff; rather, the Defendants appear
to be individuals involved in the subsequent Court proceedings in Arkansas. (See
id.) The Court finds that Plaintiff has failed to state a claim for which relief can be
granted under the facts alleged. Plaintiff has not specified what cause of action his

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attempting to bring against the Defendants and the Court cannot discern a viable
claim against them based on the facts alleged.
Further, the events at issue occurred and/or are related to court proceedings
in the state of Arkansas. Plaintiff brings the claims in the District of Kansas,
however, because courts in other “States [have] expressed zero interest in moving
our matter to a resolution.” (Doc. 1, at 3.) Plaintiff has now chosen the District of
Kansas as his latest attempted jurisdiction. He contends that he has chosen this
jurisdiction because “his spouse [has] ties to the Wichita area,” making it
“convenient to send our litigant to that area for traveling reasons . . . .” (Id.) Any
claim or controversy regarding court proceedings in Arkansas should be addressed
and resolved with that Arkansas court.
The undersigned Magistrate Judge thus recommends to the District Court
that Plaintiff’s claims be DISMISSED in their entirety. Because the Court is
recommending dismissal, Plaintiff’s motion to file conventionally (Doc. 4) is
DENIED without prejudice pending a potential review by the District Court of
the recommendation of dismissal.

IT IS THEREFORE ORDERED that Plaintiff’s motion for IFP status (Doc.
3) is GRANTED.

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IT IS FURTHER ORDERED that Plaintiff’s Motion to File Conventionally
(Doc. 4) is DENIED without prejudice given the recommendation of dismissal
made to the District Court.
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.
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 14th day of February, 2018.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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