Opinion
22-4053-EFM-KGG
10-04-2022
EUGENE K. MALLARD, Plaintiff, v. LAURA HOWARD, et al., Defendants.
MEMORANDUM & ORDER GRANTING APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES
KENNETH G. GALE, UNITED STATES MAGISTRATE JUDGE
In conjunction with his federal court Complaint alleging violations of his freedom of religion (Doc. 1), Plaintiff Eugene Mallard has filed a Motion for Leave to Proceed In Forma Pauperis (“IFP application,” Doc. 2, sealed). Plaintiff also moves for an Order appointing the United States Marshals Service to serve the Summons and Complaint on Defendants. (Doc. 3.) After review of Plaintiff's motions, the Court GRANTS the IFP application (Doc. 2, sealed) and request for appointment of the United States Marshals Service to serve the Summons and Complaint on Defendants (Doc. 3).
ANALYSIS
I. Application to Proceed In Forma Pauperis.
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. July 17, 2000) (denying motion because “Plaintiff is employed, with monthly income exceeding her monthly expenses by approximately $600.00”).
Plaintiff is a patient and resident at the Larned State Hospital, a psychiatric facility run by the state of Kansas. In the form application he submitted, Plaintiff indicates he is 58 years old. (Doc. 2-1, sealed, at 6.) He lists nominal income over the past 12 months from employment at the hospital, which ended in March 2022. (Id., at 2.) He lists no other income over the past 12 months. (Id.) He does not own a home or an automobile. (Id., at 3.) He also indicates little or nothing in the way of assets or cash on hand. (Id.)
Considering the information submitted by Plaintiff, the Court finds that he 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's request to proceed in forma pauperis. (Doc. 2, sealed.)
II. Appointment of Marshals.
Plaintiff also moves for an Order appointing the United States Marshals Service to serve the Summons and Complaint on Defendants. (Doc. 3.) Federal Rule of Civil Procedure 4 governs service in federal court. Pursuant to Rule 4(c) of that rule, “[t]he plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.” Fed.R.Civ.P. 4(c). The Rule continues that [a]t the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court.
The court must so order if the plaintiff is authorized to
proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.Fed.R.Civ.P. 4(c)(3).
As such, the Court GRANTS Plaintiff's request. Plaintiff is directed to immediately prepare and submit summon(s) to the Clerk for service. The Clerk is instructed to forward the same to the U.S. Marshal for service on Defendants pursuant to Fed.R.Civ.P. 4.
IT IS THEREFORE ORDERED that Plaintiff's application for IFP status (Doc. 2, sealed) and request for appointment of the United States Marshals Service to serve the Summons and Complaint on Defendants (Doc. 3) are hereby GRANTED.
IT IS SO ORDERED.