Martin v. Burgess

• Court: District Court, D. Kansas
• Decided: January 22, 2025
• Docket: 5:24-cv-04079
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

CLAYTON JAY MARTIN, ) ) Plaintiff, ) ) v. ) Case No. 24-4079-DDC-GEB ) RICHARD BURGESS, JR., ) J. COLIN REYNOLDS, ) LEVI MORRIS, ) RITA SUNDERLAND, ) BRIAN BELLINDIR, ) DOUG PARKS, ) SHANE BECKER, ) ) Defendants. ) )

ORDER

This matter is before the Court on Plaintiff Clayton Jay Martin’s Motion to Proceed Without Prepayment or Fees (ECF No. 3, sealed). For the reasons outlined below, Plaintiff’s Motion (ECF No. 2, sealed) is GRANTED. Under 28 U.S.C. §1915(a), the Court has discretion 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 giver security thereof.”1 “Proceeding in forma pauperis in a civil case ‘is a privilege, not a right-fundamental or otherwise.’”2 However,

1 Barnett ex rel. Barnett v. Nw. Sch., No. 00-2499-KHV, 2000 WL 1909625, at *1 (D. Kan. Dec. 26, 2000) (citing Cabrera v. Horgas, 173 F.3d 863, at *1 (10th Cir. 1999); Cross v. General Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983); and Buggs v. Riverside Hosp., No. 97-1088-WEB, 1997 WL 321289, at *1 (D. Kan. Apr. 9, 1997)). 2 Barnett, at *1 (quoting White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998), cert. denied, 526 U.S. 1008 (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.”3 To determine whether a party is eligible to file without prepayment of the fee, the

court reviews a party’s financial affidavit and compares his monthly expenses with the monthly income disclosed therein.4 After careful review of Plaintiff’s supplemental financial affidavit5 and comparing Plaintiff’s listed monthly income and 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 or Fees (ECF No. 3, sealed) is GRANTED. Although service of process would normally be undertaken by the clerk of court pursuant to 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 review of the Report and Recommendation filed simultaneously here.6 IT IS SO ORDERED.

Dated at Wichita, Kansas this 21st day of January 2025. s/ Gwynne E. Birzer GWYNNE E. BIRZER United States Magistrate Judge

3 Alexander v. Wichita Hous. Auth., No. 07-1149-JTM, 2007 WL 2316902, at *1 (D. Kan. Aug. 9, 2007) (citing Yellen v. Cooper, 82 F.2d 1471 (10th Cir.1987)). 4 Id. (citing Patillo v. N. Am. Van Lines, Inc., No. 02-2162-JWL, 2002 WL 1162684, at *1 (D. Kan. April. 15, 2002); Webb v. Cessna Aircraft, No. 00-2229-JWL, 2000 WL 1025575, at *1 (D. Kan. July 17, 2000)). 5 ECF No. 5. 6 See Webb. v. Vratil, No. 12-2588-EFM, ECF No. 7 (D. Kan. Sept. 28, 2012) (withholding service of process pending review under 28 U.S.C. § 1915(e) and jurisdictional review).