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Serrano v. Hull

United States District Court, D. New Mexico

December 20, 2017

RUDOLPH SERRANO, Plaintiff,
v.
MAYOR GREGORY HULL, OFFICER BRANDON MCKINNEY, and SERGEANT BUHL, Defendants.

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

         THIS MATTER comes before the Court on pro se Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs, Doc. 2, filed August 18, 2017 (“Application”) and on Plaintiff's Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, Doc. 1, filed August 18, 2017 (“Complaint”). For the reasons stated below, the Court will GRANT Plaintiff's Application and DISMISS Plaintiff's Complaint without prejudice. Plaintiff shall have 14 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. Plaintiff shall, within 14 days of entry of this Order, show cause why the Court should not impose filing restrictions.

         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 Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs. Plaintiff signed an affidavit stating he is unable to pay the costs of these proceedings and provided the following information: (i) Plaintiff is unemployed; (ii) Plaintiff's average monthly income is $810.00 in disability and public-assistance; and (iii) Plaintiff's monthly expenses total $812.00. The Court finds that Plaintiff is unable to pay the costs of this proceeding because he is unemployed and his monthly expenses exceed his low monthly income.

         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 quotes several statutes and alleges the following facts:

I went to 300 Quantum Rd. to advice the Police of neigbhors, asking me to leave their street and that my vehicle was broken, [Officer McKinney] followed me, and arrested me, falsely accusing me, without reding my miranda rights, lying under oath. . . . Sargent Buhl, knowingly I was falsely arrested, created a false, incomplete, report, with the only intention to harm the reputation of Petitioner, and in 04/29/16 retaliated. . . . .
On 06/27/2015 I was arrested and charge by Officer McKinney and on 06/28/2015 Sargent Buhl make a revision and excluded any facts, creating 2 years of false incarcerations and mental evaluations the destroy my public record. This matter was in front of two magistrate judges, and 3 District Judges and finally dismiss, and now is a 5 jepardy case, creating, inestopable mental evaluations and lack of C.O.P.D. treatment. that only Florida haves. Violating my 1st, 8th and 14th Constitutional Rights without even reading my miranda rights. . . . .
I was force to come here on false stalking accusations of harrasment. . . . From my home state Florida and falsely got charge in this new case, in both instead of my right to a speedy trial, the courts continue portrain my character as “less than” or dangerous to the community. destroying my intent to run for office, resusing to answer interrogatories on case 1:15-cv-1063-KG-KK and 1:15-cv-01064. Obstructing justice. dishonesty obtructing and continuously impeding petitioner strategy to give full cooperation. . . 104 N.M. 630, 225P, substracting thru mental evaluatins, information only of value to the national security of our country. that Petitioner's tie by family obligation exposing him to enemies. Redistrictng Plan in order to achieve a racial outcome. False Arrest. . . . .
The acts of both officers of arresting me base just in my accent origin, (Mexico) without reading my rights, Not found in the history of prior arrest. the fact that even two years after this case was dissmiss by several federal and state judges when a polygraph lie detector test was requested. show the false pretence and racial indiference in this case. . . . .
The act of both officers by filing and refiling a year later, hiding from the courts every single detail of inocence, in their report have cause, irreparable brain damage to wich Petitioner now have to get in to a drug regime, due to the anxiety and distress that unfair incarceration ...

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