United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS AND DISMISSING THIS CASE WITHOUT
MATTER comes before the Court on Plaintiff's
Application to Proceed in District Court Without Prepaying
Fees or Costs, Doc. 2, filed January 9, 2018
(“Application”), and on Plaintiff's Civil
Complaint Under Title 42 U.S. Code § 1983, Doc. 1, filed
January 9, 2018 (“Complaint”). For the reasons
set forth below, the Court will GRANT
Plaintiff's Application and DISMISS this
case without prejudice.
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. 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 declaring that he is unable to pay the
costs of these proceedings and provided the following
information: (i) his average monthly income during the past
12 months was $2, 118.00 and his expected income next month
is $1, 059.00; (ii) his average monthly expenses are $1,
430.00; (iii) he and his spouse do not have any cash and have
$350.00 in bank accounts; and (iv) his only assets are two
vehicles. The Court finds that Plaintiff is unable to pay the
filing fee because he and his spouse have no cash and only
$350.00 in bank accounts, and because his monthly expenses
exceed his expected income next month.
of Proceedings In Forma Pauperis
Bailey is a judge in Juvenile and Domestic Relations District
Court in Page County, Virginia. See Complaint at 2.
Defendant Bailey issued a capias/detainer for Plaintiff's
failure to pay child support and to appear. Plaintiff, who
resides in New Mexico, was stopped by local police who
investigated the detainer by contacting Defendant Logan, who
is an Assistant Page County Attorney. Defendant Logan stated
that her office declined to have Plaintiff extradited on the
grounds that “it was not the interest of Virginia to
extradite for a non Criminal issue.” Complaint at 2.
Plaintiff asserts that Defendants violated his Constitutional
rights by refusing to file and hear Plaintiff's motion to
dismiss the capias. The only relief Plaintiff seeks is that
the “detainer be withdrawn and redacted from the
system.” Complaint at 3.
Court has obtained a copy of the Recall of Process in
Plaintiff's case in Juvenile and Domestic Relations
District Court in Page County, Virginia. See
Attachment 1. The Recall of Process, signed by Defendant
Bailey and dated January 10, 2018, commands the Page County
Sheriff's Office “to return, without further
attempt to serve” the capias entered in Plaintiff's
case in Juvenile and Domestic Relations District Court in
Page County, Virginia.
the Juvenile and Domestic Relations District Court in Page
County, Virginia, has recalled the capias, the Court will
dismiss this case without prejudice as moot.
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 plaintiff's 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 ...