Boylan v. Dollar Tree
NUNC PRO TUNC MEMORANDUM & ORDER correcting #5 Order on Motion for Leave to Proceed In Forma Pauperis/Order on Motion to Appoint Counsel, and #6 REPORT AND RECOMMENDATIONS re #1 Complaint filed by Salisha Louise Boylan. Plaintiff's fourteen (14) day deadline to serve and file any written objections to U.S. District Judge shall run from the date of service of this corrected Order. Signed by Magistrate Judge Kenneth G. Gale on 10/4/19. Mailed to pro se party Salisha Louise Boylan by certified mail. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SALISHA LOUISE BOYLAN,
Case No. 19-1236-EFM-KGG
NUNC PRO TUNC MEMORANDUM & ORDER ON
MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES,
MOTION TO APPOINT COUNSEL, AND
REPORT & RECOMMENDATION FOR DISMISSAL
In conjunction with her federal court Complaint (Doc. 1), Plaintiff Salisha
Louise Boylan has also filed a Motion to Proceed Without Prepayment of Fees
(“IFP application,” Doc. 3, sealed) with a supporting financial affidavit (Doc. 3-1).
After review of Plaintiff’s motion, as well as the Complaint, the Court GRANTS
the IFP application (Doc. 3), DENIES her request for counsel (Doc. 4), and
recommends Plaintiff’s claims be dismissed for failure to state a viable federal
cause of action.1
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.
This nunc pro tunc Order corrects a clerical error in the original order. (See page 10,
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 she is 40 and single
with three dependents. (Doc. 3, sealed, at 1-2.) Plaintiff is currently unemployed
but was previously employed as a sales associate by Harbor Freight Tools, earning
a modest monthly wage. (Id., at 3.) She receives a small, monthly amount from a
pension/trust fund/annuity/life insurance source as well as a small amount in
government benefits. (Id., at 4-5.) She has a claim for unemployment benefits
currently on appeal. (Id., at 5.)
Plaintiff does not own real property or automobile and has no cash on hand.
(Id., at 3-4.) She does not list any monthly expenses, including rent, groceries, or
utilities. (Id., at 5.) She does, however, list an outstanding student loan, although
this appears to be for one of her children who is over the age of 18. (Id.) Plaintiff
has not previously for bankruptcy. (Id., at 6.)
The Court finds that, based on the information provided, Plaintiff’s monthly
expenses exceed her monthly income. As such, her 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.)
Request for Counsel.
Plaintiff has also filed a motion requesting the appointment of counsel.
(Doc. 4.) As an initial matter, the Court notes that there is no constitutional right to
have counsel appointed in civil cases such as this one. Beaudry v. Corr. Corp. of
Am., 331 F.3d 1164, 1169 (10th Cir. 2003). “[A] district court has discretion to
request counsel to represent an indigent party in a civil case” pursuant to 28 U.S.C.
§ 1915(e)(1). Commodity Futures Trading Comm’n v. Brockbank, 316 F. App’x
707, 712 (10th Cir. 2008). The decision whether to appoint counsel “is left to the
sound discretion of the district court.” Lyons v. Kyner, 367 F. App’x 878, n.9
(10th Cir. 2010) (citation omitted).
The Tenth Circuit has identified four factors to be considered when a court is
deciding whether to appoint counsel for an individual: (1) plaintiff’s ability to
afford counsel, (2) plaintiff’s diligence in searching for counsel, (3) the merits of
plaintiff’s case, and (4) plaintiff’s capacity to prepare and present the case without
the aid of counsel. McCarthy v. Weinberg, 753 F.2d 836, 838-39 (10th Cir. 1985)
(listing factors applicable to applications under the IFP statute); Castner v.
Colorado Springs Cablevision, 979 F.2d 1417, 1421 (10th Cir. 1992) (listing
factors applicable to applications under Title VII). Thoughtful and prudent use of
the appointment power is necessary so that willing counsel may be located without
the need to make coercive appointments. The indiscriminate appointment of
volunteer counsel to undeserving claims will waste a precious resource and may
discourage attorneys from donating their time. Castner, 979 F.2d at 1421.
As discussed in Section A., supra, Plaintiff’s financial situation would make
it impossible for her to afford counsel. The second factor is Plaintiff’s diligence in
searching for counsel. Based on the information contained in the form motion,
Plaintiff has been diligent, but unsuccessful, in her attempt to secure legal
representation. (Doc. 4.) As for the next factor, the Court has concerns regarding
the viability of Plaintiff’s claims in federal court, as discussed in Section C., infra.
See McCarthy, 753 F.2d at 838-39 (10th Cir. 1985); Castner, 979 F.2d at 1421.
The Court’s analysis thus turns to the final factor, Plaintiff’s capacity to prepare
and present the case without the aid of counsel. Castner, 979 F.2d at 1420-21.
In considering this factor, the Court must look to the complexity of the legal
issues and Plaintiff’s ability to gather and present crucial facts. Id., at 1422. The
Court notes that the factual and legal issues in this case are not unusually complex.
Cf. Kayhill v. Unified Govern. of Wyandotte, 197 F.R.D. 454, 458 (D.Kan. 2000)
(finding that the “factual and legal issues” in a case involving a former employee’s
allegations of race, religion, sex, national origin, and disability discrimination were
The Court sees no basis to distinguish Plaintiff from the many other
untrained individuals who represent themselves pro se on various types of claims
in Courts throughout the United States on any given day. Although Plaintiff is not
trained as an attorney, and while an attorney might present this case more
effectively, this fact alone does not warrant appointment of counsel. As such, the
Motion to Appoint Counsel (Doc. 4, sealed) is DENIED.
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).
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,
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 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 she 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 employment discrimination claims “due to race, retaliation,
wrongful termination, falsefying [sic] documentation, defimation [sic] of
character.” (Doc. 3, sealed, at 1.) She also accuses Defendant of committing
perjury during her unemployment hearing.2 (Doc. 1, at 3.) Although Plaintiff
indicates that she is “bi-racial, African American” (id.), her Complaint contains no
facts to support her allegations that any of Defendant’s alleged behavior was
motivated by race or that individuals of other races were treated more favorably
than she was. Cf. Lopez v. Reser’s Fine Foods, Inc., 2013 WL 6587933, at *6,
No. 12-4083-EFM-JPO (D. Kan. Dec. 13, 2013) (granting summary judgment
where a plaintiff alleging age discrimination failed to provide evidence that
younger workers were treated more favorably).
Further, although she alleges retaliation, the Complaint is devoid of any
indication that such alleged retaliation was in response to Plaintiff engaging in
otherwise protected behavior. “Protected activity” can include voicing informal
complaints to supervisors. See Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015
(10th Cir.2004). That stated, “to qualify as protected opposition, the employee
must convey to the employer his or her concern that the employer has engaged in
[an unlawful] practice.” Hinds v. Sprint/United Management Co., 523 F.3d 1187,
1203. “‘[A] vague reference to discrimination and harassment without any
Plaintiff contends this discriminatory behavior occurred “around January 2016 – May
2017.” (Id., at 2.) Plaintiff filed an administrative charge of discrimination on August
28, 2017, and received her “right to sue” letter on June 10, 2019, and again on August 7,
2019 (after she indicated she did not receive the first letter). (Id., at 2, 13.) Regardless,
she timely filed her federal court Complaint on September 7, 2019.
indication that this misconduct was motivated by [plaintiff’s membership in a
protected class] does not constitute protected activity and will not support a
retaliation claim.’” Id., at n.13 (quoting Anderson v. Acad. Sch. Dist. 20, 122
Fed.Appx. 912, 916 (10th Cir.2004)). An employer cannot engage in unlawful
retaliation if it does not know that the employee at least in part is engaging in
protected activity. See Petersen v. Utah Dept. of Corr., 301 F.3d 1182, 1188 (10th
Plaintiff has not alleged facts to support her allegation that she engaged in
the requisite protected activity prior to her termination.3 She also has failed to
allege any facts to support her allegation that her termination was racially
motivated. Simply stated, Plaintiff has failed to state a cause of action for race
discrimination and/or retaliation. The undersigned Magistrate Judge thus
recommends to the District Court that Plaintiff’s claims be DISMISSED in their
entirety for failure to state a cause of action pursuant to federal law.
The original text of this order incorrectly stated that “Plaintiff has alleged facts to
support her allegation that she engaged in the requisite protected activity prior to her
termination,” omitting the word “not.” This language has now been corrected.
Plaintiff’s charge of discrimination to the KHRC states that she “openly opposed acts and
practices forbidden by the Kansas Act Against Discrimination.” (Doc. 1, at 16.) The
charge does not state what constituted this “open opposition” or what constituted the
“forbidden practices.” Plaintiff’s federal court Complaint is also devoid of such
allegations. (See generally, id.)
IT IS THEREFORE ORDERED that Plaintiff’s motion for IFP status (Doc.
3) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Appointment of
Counsel (Doc. 4) is DENIED.
IT IS RECOMMENDED, however, to the District Court that Plaintiff’s
Complaint (Doc. 1) be DISMISSED. 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 16th day of September, 2019.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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