Anderson v. Pistotnik Law et al

Filing 5

ORDER granting 3 Motion for Leave to Proceed in forma pauperis. The clerk is directed to STAY service of process pending the District Court's review of the Report and Recommendation filed simultaneously herein. Signed by Magistrate Judge Gwynne E. Birzer on 2/21/18. Mailed to pro se party Marie A. Anderson by certified mail with the Report & Recommendation; Certified Tracking Number: 70123050000111903665. (adc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MARIE A. ANDERSON,
Plaintiff,
v.
PISTOTNIK LAW, et al.,
Defendants.

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Case No. 18-1048-EFM-GEB

ORDER
This matter is before the Court on Plaintiff’s Motion to Proceed without Prepayment
of Fees (ECF No. 3). For the reasons outlined below, Plaintiff’s Motion to Proceed without
Prepayment of Fees (ECF No. 3) is GRANTED.
Under 28 U.S.C. § 1915(a), the Court has the discretion1 to authorize the filing of a
civil case “without prepayment of fees or security thereof, by a person who submits an
affidavit that . . . the person is unable to pay such fees or give security thereof.” “Proceeding
in forma pauperis in a civil case ‘is a privilege, not a right—fundamental or otherwise.’”2
To determine whether a party is eligible to file without prepayment of the fee, the Court
commonly reviews that party’s financial affidavit, and compares his or her monthly
expenses with the monthly income disclosed therein.3 In her application and financial

1

Barnett ex rel. Barnett v. Nw. Sch., No. 00-2499, 2000 WL 1909625, at *1 (D. Kan. Dec. 26,
2000) (citing Cabrera v. Horgas, 173 F.3d 863, at *1 (10th Cir. April 23, 1999)).
2
Id. (quoting White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998)).
3
Alexander v. Wichita Hous. Auth., No. 07-1149-JTM, 2007 WL 2316902, at *1 (D. Kan. Aug. 9,
2007) (citing Patillo v. N. Am. Van Lines, Inc., No. 02-2162-JWL-DJW, 2000 WL 1162684, at *1)

affidavit (ECF No. 4, sealed), Plaintiff indicates she is not currently employed. Although
she discloses her spouse’s income, as well as minimal assets owned by Plaintiff and her
husband, it appears the couple’s household income is less than their monthly obligations
(ECF No. 4, sealed).

In keeping with the Court’s liberal policy toward permitting

proceedings in forma pauperis,4 and after careful review of Plaintiff’s Motion and
Affidavit of Financial Status (ECF Nos. 3, 4, sealed), the Court finds she is financially
unable to pay the filing fee.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Proceed without
Prepayment of Fees (ECF No. 3) is GRANTED. Although a grant of in forma pauperis
status to a filing party would normally invoke service of process by the clerk of court under
28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3), the clerk is directed to stay service of any
documents pending the District Court’s review of the Report and Recommendation filed
simultaneously herein (ECF No. 6).5

IT IS SO ORDERED.
Dated at Wichita, Kansas this 21st day of February 2018.
s/ GWYNNE E. BIRZER
GWYNNE E. BIRZER
United States Magistrate Judge

(D. Kan. Apr. 15, 2002) and Webb v. Cessna Aircraft, No. 00-2229-JWL-DJW, 2000 WL 1025575,
at *1 (D. Kan. July 17, 2000)).
4
See generally, Yellen v. Cooper, 828 F.2d 1471 (10th Cir. 1987).
5
See Webb v. Vratil, No. 12-2588-EFM-GLR, ECF No. 7 (D. Kan. Sept. 28, 2012) (withholding
service of process pending review under 28 U.S.C. § 1915(e)(2)(B) and Fed. R. Civ. P. 12(h)(3)).
2