McDonald v. Kansas, State of

• Court: District Court, D. Kansas
• Decided: May 15, 2024
• Docket: 6:24-cv-01077
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

MICHAEL MCDONALD, ) ) Plaintiff, ) ) v. ) Case No. 24-1077-JWB-BGS ) STATE OF KANSAS, et al., ) ) Defendants. ) ___________________________________ )

MEMORANDUM & ORDER ON APPLICATION

In conjunction with his Complaint (Doc. 1), pro se Plaintiff Michael McDonald filed a Motion to Proceed Without Prepayment of Fees (“In forma Pauperis (‘IFP’) application”) with a supporting financial affidavit (Docs. 3, 3-1, sealed). For the reasons set forth herein, Plaintiff’s IFP application (Doc. 3) is provisionally GRANTED. Under 28 U.S.C. § 1915(a), a federal court may authorize commencement of a civil action “without prepayment of fees or security therefor, by a person who submits an affidavit that . . . the person is unable to pay such fees or give security therefor.” To succeed on an IFP motion, “the movant must show a financial inability to pay the required filing fees.” Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005). Proceeding IFP “in a civil case is a privilege, not a right – fundamental or otherwise.” White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998). The decision to grant or deny IFP status under § 1915 lies within the district court’s sound discretion. Engberg v. Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001). Based on the financial information provided by Plaintiff in his Motion and Affidavit of Financial Status, the Court believes Plaintiff may have the ability to pay at least a portion of the filing fee. Because of the Court’s recommendation of dismissal (pursuant to contemporaneously filed Report & Recommendation), however, the Court will not require Plaintiff to provide partial payment of the filing fee but instead provisionally GRANTS his motion to proceed in forma pauperis (Doc. 4) pending any review by District Court of the Report & Recommendation of Dismissal. Should Plaintiff’s Complaint survive the undersigned’s recommendation of dismissal, the undersigned will reevaluate the issue of requiring the payment of a partial filing fee. Because of the Court’s forthcoming Report & Recommendation of Dismissal, the Clerk is not directed to issue summons for service upon the Defendant at this time.

IT IS THEREFORE ORDERED that Plaintiff’s IFP Application (Doc. 4) is provisionally GRANTED subject to additional review, as discussed above. The Clerk’s office shall not proceed to issue summons in this case. IT IS SO ORDERED. Dated at Wichita, Kansas, on this 15th day of May, 2024. /S/ BROOKS G. SEVERSON Brooks G. Severson United States Magistrate Judge