United States District Court, D. New Mexico
ROBERT A. GARCIA, Plaintiff,
UNITED STATES OF AMERICA, and UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS, DENYING MOTION TO APPOINT COUNSEL
AND DISMISSING THE CASE WITHOUT PREJUDICE
MATTER comes before the Court on pro se
Plaintiff's Application to Proceed in District Court
Without Prepaying Fees or Costs, Doc. 2, filed January 16,
2018 (“Application”), on Plaintiff's Motion
to Appoint Counsel, Doc. 4, filed January 17, 2018, and on
Plaintiff's Civil Rights Complaint Pursuant to 42 U.S.C.
§ 1983, Doc. 1, filed January 16, 2018
(“Complaint”). For the reasons stated below, the
Court will GRANT Plaintiff's Application, DISMISS this
case without prejudice for lack of subject-matter
jurisdiction, and DENY the Motion to Appoint Counsel as moot.
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).
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 stated: (i) his average monthly income
during the past 12 months is $1, 415.00; (ii) his average
monthly expenses total $2, 223.00; (iii) he is unemployed; (iv)
he has no cash and no money in bank accounts; and (v) his
only asset is a motor vehicle. The Court finds Plaintiff is
unable to pay the costs of these proceedings because his
monthly expenses exceed his monthly income and because he
presently has no cash and no money in bank accounts.
See Adkins v. E.I. DuPont de Nemours &
Co., 335 U.S. 331, 339 (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
filed his Complaint using the form “Civil Rights
Complaint Pursuant to 42 U.S.C. § 1983.” Plaintiff
alleges that doctors with the United States Department of
Veterans Affairs overprescribed him medication and did not
provide proper medical care. It appears that Plaintiff is
asserting a medical malpractice claim pursuant to the Federal
Tort Claims Act (“FTCA”).
party seeking to invoke the jurisdiction of this Court,
Plaintiff bears the burden of alleging facts that support
jurisdiction. See Dutcher v. Matheson, 733 F.3d 980,
985 (10th Cir. 2013) (“Since federal courts are courts
of limited jurisdiction, we presume no jurisdiction exists
absent an adequate showing by the party invoking federal
jurisdiction”). Plaintiff's Complaint does not
contain “a short and plain statement of the grounds for
the court's jurisdiction” as required by Rule
8(a)(1) of the Federal Rules of Civil Procedure.
FTCA bars claimants from bringing suit in federal court until
they have exhausted their administrative remedies.”
Lopez v. United States, 823 F.3d 970, 976 (10th Cir.
2016) (quoting McNeil v. United States, 508 U.S.
106, 113 (1993)). The FTCA states, in relevant part, that
[a]n action shall not be instituted upon a claim against the
United States for money damages for injury or loss of
property or personal injury or death caused by the negligent
or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment,
unless the claimant shall have first presented the claim to
the appropriate Federal agency and his claim shall have been
finally denied by the agency in writing and sent by certified
or registered mail.
28 U.S.C. § 2675(a). “This exhaustion requirement
is jurisdictional and cannot be waived.” Lopez v.
United States, 823 F.3d 970, 976 (10th Cir. 2016).
“In other words, the FTCA bars would-be tort plaintiffs
from bringing suit against the government unless the claimant
has previously submitted a claim for damages to the offending
agency, because Congress wants agencies to have an
opportunity to settle disputes before defending against
litigation in court.” Smoke Shop, LLC v. United
States, 761 F.3d 779, 786 (7th Cir.2014) (citing
McNeil, 508 U.S. at 112 & n. 7).
is no indication in the Complaint that Plaintiff has
exhausted his administrative remedies. There are no
allegations that Plaintiff filed a claim with the appropriate
agency which includes: (1) a written statement sufficiently
describing the injury to enable the agency to begin its own
investigation, and (2) a sum certain damages claim. Lopez
v. United States, 823 F.3d 970, 976 (10th Cir. 2016)
(stating jurisdictional statute can be satisfied by claimant
filing written statement describing injury and requesting sum
certain in damages). Nor are there any allegations that the
appropriate agency finally denied his claim. Furthermore,
where the form Complaint prompts Plaintiff to indicate
whether Plaintiff has “previously sought informal or
formal relief from the appropriate administrative officials
regarding the acts complained of, ” Plaintiff responded
“No.” Complaint at 4.
Court will dismiss the Complaint without prejudice for lack
of subject-matter jurisdiction. See Fed. R. Civ. P.
12(h)(3) (“If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the
action”); Brereton v. Bountiful City Corp.,434 F.3d 1213, 1218 (10th Cir.2006) (“[D]ismissals for
lack of jurisdiction should be without prejudice because the
court, having determined that it lacks ...