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Hunt v. Place

United States District Court, D. New Mexico

October 27, 2017

AMY J. HUNT, Plaintiff,
v.
VALUE PLACE, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITHOUT PREJUDICE

          M. CHRISTINA ARMIJO CHIEF UNITED STATES DISTRICT JUDGE.

         THIS 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 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). "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.

         The 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;[1] (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.

         Dismissal of Proceedings In Forma Pauperis

         The 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).

         Plaintiff 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 to advantage.

[sic] Complaint at 2-3.[2]

         Title 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). ...


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