Opinion
Case No. 19-cv-01132-JWB-GEB
07-15-2019
JOSEPH H. SCHROEDER, II, Plaintiff, v. RISECO, Defendant.
ORDER
This matter is before the Court on Plaintiff Joseph H. Schroeder, II's Motion to Proceed Without Prepayment of Fees (ECF No. 3, sealed). For the reasons set forth below, Plaintiff's Motion for Leave to Proceed in forma pauperis (ECF No. 3, sealed) is GRANTED.
Approval of Plaintiff's application to proceed in forma pauperis in a civil matter is a privilege, not a right. The Court, under 28 U.S.C. § 1915(a), may exercise sound discretion to authorize the filing of a civil case without prepayment of fees or security, so long as the person submits a financial affidavit and the Court determines they are incapable of paying such fees. Typically, the Court compares the applicant's monthly income to his or her monthly expenses to ascertain the applicant's financial ability to pay. Courts must neither act arbitrarily nor deny the application on erroneous grounds, but such applications should be granted sparingly.
Baldwin v. City of Osawatomie, Kan., No 07-1097-WEB, 2007 WL 1652145, at *1 (D. Kan. June 7, 2007) (citing White v. Colorado, 157 F.3d 1126, 1233 (10th Cir. 1998)).
Barnett ex rel. Barnett v. Nw. Sch., No. 00-2499, 2000 WL 1909625, at *1 (D. Kan. Dec. 26, 2000) (citing Cabrera v. Horgas, No. 98-4231, 1999 WL 241783, at *1 (D. Kan. Apr. 23, 1999)).
Patillo v. N. Am. Van Lines, Inc., No. 02-2162- 2002 WL 1162684, at *1 (D. Kan. Apr. 15, 2002) (citing Buggs v. Riverside Hosp., No. 97-1088-WEB, 1997 WL 321289, at *8 (D. Kan. Apr. 9, 1997)).
Baldwin, 2007 WL 1652145, at *1; see Lister v. Dep't of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005).
Patillo, 2002 WL 1162684, at *1 (citing Buggs, 1997 WL 321289, at *8).
This Court has carefully reviewed Plaintiff's attached affidavit of financial status (ECF No. 3-1, sealed), and concludes Plaintiff qualifies to proceed without prepayment of fees. Plaintiff discloses he is employed, single, and without any dependents. Also, Plaintiff's only owned property is an automobile which still has a considerable amount owed against it. Additionally, Plaintiff's disclosed monthly expenses substantially exceed his reported monthly income. The composition of Plaintiff's monthly obligations compared to his reported monthly salary persuades the Court to grant clemency.
IT IS THEREFORE ORDERED that the Motion to Proceed Without Prepayment of Fees (ECF No. 3, sealed) is GRANTED. 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). However, in light of this Court's order requiring Plaintiff to file an amended complaint (ECF No. 5), the clerk is directed to stay service of process pending Plaintiff's filing of an amended complaint and the Court's review of the amendment.
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)).
IT IS SO ORDERED.
Dated this 15th day of July, 2019 at Wichita, Kansas.
s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge