Wheeler v. Taco Shop

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DAMON L. WHEELER, )
)
Plaintiff, )
)
v. ) Case No. 25-1176- JWB-GEB
)
TACO SHOP, )
)
Defendant. )
)
MEMORANDUM AND ORDER
Plaintiff filed his Complaint (ECF No. 1) on August 15, 2025, and simultaneously
filed a Motion to Proceed Without Prepayment of Fees (ECF No. 3, sealed). While the
Court screened Plaintiff’s Complaint per 28 U.S.C. § 1915, Plaintiff also filed a Motion for
Order (ECF No. 4) and a Motion for Review (ECF No. 6). For the reasons set forth herein,
the Court GRANTS Plaintiff’s Motion to Proceed Without Prepayment of Fees (ECF No.
3, sealed). The Court further DENIES Plaintiff’s Motions (ECF Nos 4 & 6) as moot
pending review of the Report and Recommendation filed simultaneously herein (ECF No.
8).
Under 28 U.S.C. § 1915(a), the Court has the discretion1 to authorize the 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
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)).
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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
commonly 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 have a liberal policy toward permitting proceedings in forma pauperis.4 After
careful review of Plaintiff’s description of his financial resources (ECF No. 3, sealed), and
comparison of Plaintiff’s listed monthly income to his listed monthly expenses, the Court
finds he is financially unable to pay the filing fee.
IT IS THEREFORE ORDERED Plaintiff’s Motion to Proceed Without
Prepayment of Fees (ECF No. 3) is GRANTED.
IT IS FURTHER ORDERED Although Plaintiff proceeds in forma pauperis, the
clerk of the court is directed to stay service of process pending the Court’s review of the
following Report and Recommendation of dismissal filed simultaneously herein (ECF No.
8).5
2 Id. (quoting White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998)).
3 Alexander v. Wichita Hous. Auth., No. 07-1149-JTM, 2007 WL 2316902, at *1 (D. Kan. Aug. 9,
2007) (citing Patillo v. N. Am. Van Lines, Inc., No. 02-2162-JWL, 2000 WL 1162684, at *1) (D.
Kan. Apr. 15, 2002) and Webb v. Cessna Aircraft, No. 00-2229-JWL, 2000 WL 1025575, at *1
(D. Kan. July 17, 2000)).
4 Mitchell v. Deseret Health Care Facility, No. 13-1360-RDR, 2013 WL 5797609, at *1 (D. Kan.
Sept. 30, 2013) (citing, generally, Yellen v. Cooper, 828 F.2d 1471 (10th Cir. 1987)).
5 See Webb v. Vratil, No. 12-2588-EFM, ECF No. 7 (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)) (citing
Fuller v. Myers, 123 F. App’x 365, 368 (10th Cir. 2005)).
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IT IS FURTHER ORDERED Plaintiff’s Motions (ECF Nos. 4 & 6) are DENIED
as moot pending review of the Report and Recommendation filed simultaneously herein
(ECF No. 8).
IT IS FURTHER ORDERED ECF Nos. 4 and 5 are to be added to the operative
Complaint (ECF No. 1) as Exhibit A and B respectively.
IT IS SO ORDERED.
Dated this 11th day of March 2026 at Wichita, Kansas.
s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge
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