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Ullrich v. Moldt

United States District Court, D. New Mexico

April 3, 2017

STEPHEN ULLRICH, Plaintiff,
v.
ADDA MOLDT and DAVID RIVER, Defendants.

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT

         THIS MATTER comes before the Court on Plaintiff's Complaint, Doc. 1, filed January 30, 2017, and on his Prisoner Application to Proceed In Forma Pauperis, Doc. 2, filed January 30, 2017. For the reasons stated below, the Court will GRANT Plaintiff's Application to Proceed In Forma Pauperis and DISMISS the Complaint without prejudice. Plaintiff shall have 30 days from entry of this Order to file an amended complaint. Failure to timely file an amended complaint may result in dismissal of this case without prejudice.

         Application to Proceed in forma pauperis

         The statute for proceedings in forma pauperis, 28 U.S.C. § 1915(a), provides that the Court may authorize the commencement of any suit without prepayment of fees by a person who submits an affidavit that includes a statement of all assets the person possesses and that the person is unable to pay such fees.

When a district court receives an application for leave to proceed in forma pauperis, it should examine the papers and determine if the requirements of [28 U.S.C.] § 1915(a) are satisfied. If they are, leave should be granted. Thereafter, if the court finds that the allegations of poverty are untrue or that the action is frivolous or malicious, it may dismiss the case[.]

Menefee v. Werholtz, 368 Fed.Appx. 879, 884 (10th Cir. 2010) (citing Ragan v. Cox, 305 F.2d 58, 60 (10th Cir. 1962). “[A]n application to proceed in forma pauperis should be evaluated in light of the applicant's present financial status.” Scherer v. Kansas, 263 Fed.Appx. 667, 669 (10th Cir. 2008) (citing Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir.1988)).

         Plaintiff is a prisoner and seeks to proceed in District Court without prepaying fees or costs. The statute governing proceedings in forma pauperis, 28 U.S.C. § 1915(b), provides:

(1) Notwithstanding subsection (a), if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of--
(A) the average monthly deposits to the prisoner's account; or
(B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.
(2) After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.

         The filing fee for this civil complaint is $350.00. Plaintiff is required to pay the full amount of the filing fee pursuant to § 1915(b)(1). Plaintiff submitted a financial certificate with statement of his inmate account activity which shows his inmate account balance to be “$-1.55” on January 24, 2017. See Doc. 2 at 3. Based on the information about Plaintiff's financial status, the Court will waive an initial partial payment pursuant to § 1915(b)(1). Plaintiff shall, beginning in May 2017, make monthly payments of twenty per cent (20%) of the preceding month's income credited to his account or show cause why the designated payments should be excused. Failure to comply with this order may result in dismissal of the complaint without further notice.

         Dismissal of Complaint for Lack of Jurisdiction

         Plaintiff's claims arise from the alleged improper actions of Defendants in the disposal of Plaintiff's parents' property before and after his parents' deaths. Plaintiff alleges this action is against Defendants, “Not Probate/Estate, ” that Defendants violated his Fourth and Fifth Amendment rights, and that they committed “malfeasance, nonfeasance, in general, and malum in se.” Plaintiff appears to be asserting federal civil rights claims against Defendants pursuant to 42 U.S.C. § 1983 and states: “The Defendants are not state actors; however, they are ‘Agents', and it is alleged State of New Mexico, Constitution, Statu[t]e; or Rule, Regulation, policy or procedure, creates a color of state law as that regulates the conduct of [Defendants].” Complaint at 1. Plaintiff's statement regarding this Court's jurisdiction states in its entirety:

That [Plaintiff] alleges, ‘after all, the federal courts will always be available', as to Interstate Diversity, and pendent jurisdiction over state matters - U.S.C.A., article III., IV., VI, etc.; Additionally, Ancillary Jurisdiction, as an Equitable Remedy, ibid., Equitable Clean-up Doctrine, applyed by unconsionability Doctrine as applied to acts and actions of the Agents [Defendants Moldt and Rivers], that affects [Plaintiff], In ...

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