United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS AND DISMISSING THE COMPLAINT
WITHOUT PREJUDICE AND ORDER TO SHOW CAUSE
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
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 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.
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).
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 ...