Williams v. Milligans Enterprises Inc.

Filing 5

ORDER granting 3 Motion for Leave to Proceed Without Prepayment of Fees. The deadline for process of service is extended up to and including May 31, 2021. Signed by Magistrate Judge Gwynne E. Birzer on 3/31/2021. (kf)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS DJUAN PRESTION WILLIAMS, Plaintiff, v. MILLIGANS ENTERPRISES INC., Defendants. ) ) ) ) ) Case No. 20-1357-JWB-GEB ) ) ) ) ) ORDER This matter is before the Court on Plaintiff Djuan Preston Williams’ Motion to Proceed Without Prepayment of Fees (ECF No. 3, sealed) and supporting Affidavit of Financial Status (ECF No. 3-1 sealed). For the reasons outlined below, Plaintiff’s Motion (ECF No. 3) is GRANTED. Under 28 U.S.C. § 1915(a), the Court has discretion1 to authorize 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 1 Barnett ex rel. Barnett v. Nw. Sch., No. 00-2499-KHV, 2000 WL 1909625, *1 (D. Kan. Dec. 26, 2000) (citing Cabrera v. Horgas, No. 98-4231, 173 F.3d 863, *1 (10th Cir. April 23, 1999)). 2 Id. (quoting White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998)). 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 has a liberal policy toward permitting proceedings in forma pauperis.4 After careful review of Plaintiff’s financial resources (ECF No. 3-1 sealed), and comparison of Plaintiff’s listed monthly income and 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 Without Prepayment of Fees (ECF No. 3) is GRANTED. IT IS FURTHER ORDERED Plaintiff’s deadline for service of process is extended up to and including May 31, 2021. Service of process shall be undertaken by the clerk of court under 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3.) IT IS SO ORDERED. Dated at Wichita, Kansas this 31st day of March 2021. s/ Gwynne E. Birzer GWYNNE E. BIRZER United States Magistrate Judge 3 Alexander v. Wichita Hous. Auth., No. 07-1149-JTM, 2007 WL 2316902, *1 (D. Kan. Aug. 9, 2007) (citing Patillo v. N. Am. Van Lines, Inc., No. 02-2162-JWL, 2000 WL 1162684, *1) (D. Kan. April. 15, 2002) and Webb v. Cessna Aircraft, No. 00-2229-JWL, 2000 WL 1025575, *1 (D. Kan. July 17, 2000)). 4 Mitchell v. Deseret Health Care Facility, No. 13-1360-RDR, 2013 WL 5797609, *1 (D. Kan. Sept. 30, 2013) (citing, generally, Yellen v. Cooper, 828 F.2d 1471 (10th Cir. 1987)). -2-

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