Schroeder v. Wichita Police Department et al

Filing 9

ORDER granting 3 Motion for Leave to Proceed in forma pauperis. Although service of process would normally be undertaken 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 process pe nding the District Court's consideration of Plaintiff's pending Motion to Transfer this case back to the Southern District of Florida (ECF No. 8). Signed by Magistrate Judge Gwynne E. Birzer on 9/11/20.Mailed to pro se party Joseph H. Schroeder, II by regular mail. (adc)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS JOSEPH H. SCHROEDER, II, ) ) Plaintiff, ) ) v. ) ) WICHITA POLICE DEPARTMENT, et al., ) ) Defendant. ) ) Case No. 20-1216-DDC-GEB ORDER Upon the transfer of this matter from the U.S. District Court for the Southern District of Florida to this Court, the matter is now before the Court on Plaintiff Joseph H. Schroeder, II’s Motion to Proceed In Forma Pauperis (ECF No. 3, sealed) and supporting declaration. For the reasons outlined below, Plaintiff’s Motion (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 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)). fee, the Court commonly reviews the party’s financial affidavit and compares his or her monthly expenses with the monthly income disclosed therein.3 Both the Tenth Circuit Court of Appeals and this Court have a liberal policy toward permitting proceedings in forma pauperis.4 Although Plaintiff’s motion was completed on a different form than that which is usually required in this District—a form5 apparently utilized in the Southern District of Florida where this case was initially filed— the Court finds sufficient information contained within that form. It appears Plaintiff is currently unemployed. After careful review of Plaintiff’s description of his financial resources (ECF No. 3-1, sealed), and comparison of Plaintiff’s listed monthly income to listed monthly expenses, the Court finds he is financially unable to pay the filing fee. IT IS THEREFORE ORDERED that Plaintiff’s Motion to Proceed In Forma Pauperis (ECF No. 3) is GRANTED. Although service of process would normally be undertaken 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 process pending the District Court’s consideration of Plaintiff’s pending Motion to Transfer this case back to the Southern District of Florida (ECF No. 8). 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) (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 Mitchell v. Deseret Health Care Facility, No. 13-1360-RDR-KGG, 2013 WL 5797609, at *1 (D. Kan. Sept. 30, 2013) (citing, generally, Yellen v. Cooper, 828 F.2d 1471 (10th Cir. 1987)). 5 The form completed by Plaintiff is the “AO240 (Rev.07/10) Application to Proceed in District Court Without Prepaying Fees or Costs (Short Form).” -2- IT IS SO ORDERED. Dated at Wichita, Kansas this 11th day of September 2020. s/ Gwynne E. Birzer GWYNNE E. BIRZER United States Magistrate Judge -3-

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