United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT
JUNELL SENIOR U.S. DISTRICT JUDGE.
MATTER comes before the Court on pro se
Plaintiffs Civil Rights Complaint Pursuant to 42 U.S.C.
§ 1983, Doc. 1, filed May 23, 2017
("Complaint"), and on her Application to Proceed in
District Court Without Prepaying Fees or Costs, Doc. 2, filed
May 23, 2017 ("Application"). For the reasons
stated below, the Court will GRANT
Plaintiffs Application and DISMISS
Plaintiffs Complaint without prejudice.
Plaintiff shall have 21 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
to Proceed in forma pauperis
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)). "The statute [allowing a litigant to proceed
in forma pauperis ] was intended for the benefit of
those too poor to pay or give security for costs...."
Adkins v. EI. DuPont de Nemours & Co., 335 U.S.
331, 344 (1948). While a litigant need not be
"absolutely destitute, " "an affidavit is
sufficient which states that one cannot because of his
poverty pay or give security for the costs and still be able
to provide himself and dependents with the necessities of
life." Id. at 339.
Court will grant Plaintiffs Application to Proceed in
District Court Without Prepaying Fees or Costs. Plaintiff
signed an affidavit declaring that she is unable to pay the
costs of these proceedings and provided the following
information: (i) her average monthly income from disability
payments during the past 12 months was $2, 192.92.00 and her
income amount expected next month is $2, 197.00; (ii) she
owns no assets; (iii) her monthly expenses are $406.00; (iv)
she has no cash and no money in bank accounts, and (v) she is
unemployed. Plaintiff currently resides at Joy Junction,
which is a homeless shelter in Albuquerque, New Mexico.
See Complaint at 1. Although Plaintiff indicates her
monthly income exceeds her monthly expenses by about $1,
800.00, the Court finds that Plaintiff is unable to prepay
the fees to initiate this action because she has no cash,
money in bank accounts or assets. See Adkins v. E.I.
DuPont de Nemours & Co., 335 U.S. 331, 344 (1948)
(While a litigant need not be "absolutely destitute,
" "an affidavit is sufficient which states that one
cannot because of his poverty pay or give security for the
costs and still be able to provide himself and dependents
with the necessities of life").
of Proceedings In Forma Pauperis
statute governing proceedings in forma pauperis
requires federal courts to dismiss an in forma
pauperis proceeding that "is frivolous or
malicious; ... fails to state a claim on which relief may be
granted; ... or seeks monetary relief against a defendant who
is immune from such relief." See 28 U.S.C.
§ 1915(e)(2). "Dismissal of a pro se
complaint for failure to state a claim is proper only where
it is obvious that the plaintiff cannot prevail on the facts
he has alleged and it would be futile to give him an
opportunity to amend." Kay v. Bemis, 500 F.3d
1214, 1217 (10th Cir. 2007). "In determining whether a
dismissal is proper, we must accept the allegations of the
complaint as true and construe those allegations, and any
reasonable inferences that might be drawn from them, in the
light most favorable to the plaintiff." Kay v.
Bemis, 500 F.3d at 1217. The Court looks to the specific
allegations in the complaint to determine whether they
plausibly support a legal claim for relief, i.e. the factual
allegations must be enough to raise a right to relief above
the speculative level. See id at 1218 (quoting
Bell All. Corp. v. Twombly, 550 U.S. 544 (2007)).
Dismissal of an in forma pauperis complaint as
frivolous is not an abuse of discretion based on a
determination that the pro se litigant did not state
a viable legal claim and that the complaint consisted of
little more than unintelligible ramblings. Triplett v.
Tripletf, 166 Fed.Appx. 338, 339-340 (10th Cir. 2006).
However, "pro se litigants are to be given reasonable
opportunity to remedy the defects in their pleadings."
Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir.
indicates that Defendants Morrissette and Brown are employed
by the Gallup, New Mexico, Police Department. See
Complaint at 1-2. The Complaint, however, is largely
unintelligible and fails to state with any particularity what
each Defendant did to Plaintiff, when the Defendants
committed these alleged unspecified actions, or how those
actions harmed Plaintiff. See Nasious v. Two Unknown
B.I.C.E. Agents, at Arapahoe County Justice Center, 492
F.3d 1158, 1163 (10th Cir. 2007) ("[T]o state a claim in
federal court, a complaint must explain what each defendant
did to him or her; when the defendant did it; how the
defendant's action harmed him or her; and, what specific
legal right the plaintiff believes the defendant
Court will dismiss the Complaint without prejudice for
failure to state a claim. Plaintiff shall have 21 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.
1915 provides that the "officers of the court shall
issue and serve all process, and perform all duties in
[proceedings in forma pauperis]"). 28 U.S.C.
§ 1915(d). Rule 4 provides that:
At the plaintiffs request, the court may order that service
be made by a United States marshal or deputy marshal or by a
person specially appointed by the court. The court must so
order if the plaintiff is authorized to proceed in forma
pauperis under 28 ...