United States District Court, D. New Mexico
AMY J. HUNT, Plaintiff,
VALUE PLACE, Defendant.
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITHOUT
CHRISTINA ARMIJO CHIEF UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on pro se
Plaintiffs Application to Proceed in District Court Without
Prepaying Fees or Costs, Doc. 2, filed September 26, 2017
("Application") and on Plaintiffs Civil Rights
Complaint Pursuant to 42 U.S.C. § 1983, Doc. 1, filed
September 26, 2017 ("Complaint"). 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). "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. 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." Id. at 339.
Court will grant Plaintiffs Application to Proceed in
District Court Without Prepaying Fees or Costs. Plaintiff
signed an affidavit stating she is unable to pay the costs of
these proceedings and provided the following information: (i)
Plaintiff is unemployed; (ii) Plaintiff receives $772.00 in
disability payments each month; (iii) Plaintiff has no assets;
(iv) Plaintiff has $600.00 in a bank account; (v) Plaintiffs
average monthly expenses total $560.00; and (vi) she is
"having a hard time with my bills." The Court finds
that Plaintiff is unable to pay the costs of this proceeding
because she is unemployed, and has relatively low monthly
income which only slightly exceeds her monthly expenses.
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). "[P]ro 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. 1991).
asserts a claim of disability discrimination against
Defendant, who appears to be a hotel, stating:
I am being inhumanely discriminate cause I am in a wheelchair
with a service dog for basic needs of toilet paper, changes
of my linens, and being provided cancer sticks holes in my
bedding, and they told pay extra for these items and
housekeeping non-existance every other week unless you want
pay extra. All they do is yell at guest and strip of
reservations when guest to complain.
General Manger named Jenifer is very rude discrimintory
person has no consideration with people with disabilities,
and there are plenty of people disabities cause veterans
program, especially with people in wheel chairs and service
animals, as well as her staff can't do simple tasks of
basic need for disable people, and rather use her pregnancy
[sic] Complaint at 2-3.
III of the Americans with Disabilities Act prohibits
discrimination against persons with disabilities in places of
public accommodation. See 42 U.S.C. § 12182(a)
("No individual shall be discriminated against on the
basis of disability in the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any
person who owns, leases (or leases to), or operates a place
of public accommodation"). Plaintiff makes the
conclusory allegation that she was discriminated against
because of she is disabled. However, "conclusory
allegations without supporting factual averments are
insufficient to state a claim on which relief can be based .
. . [and] in analyzing the sufficiency of the plaintiffs
complaint, the court need accept as true only the plaintiffs
well-pleaded factual contentions, not his conclusory
allegations." Hall v. Bellmon,935 F.2d 1106,
1110 (10th Cir. 1991). ...