United States District Court, D. New Mexico
GREGORY EDWARD KUCERA III, CENTRAL INTELLIGENCE AGENCY, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
Fe, New Mexico Plaintiff pro se
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER comes before the Court, under 28 U.S.C.
§ 1915 and rule 12(h)(3) of the Federal Rules of Civil
Procedure, on: (i) the Plaintiff's Civil Rights Complaint
Pursuant to 42 U.S.C. § 1983, filed December 14, 2017
(Doc. 1)(“Complaint”); (ii) the Plaintiff's
Application to Proceed in District Court without Prepaying
Fees or Costs, filed December 14, 2017 (Doc.
2)(“Application”); and (iii) the Plaintiff's
Motion for Hearing, filed January 5, 2018 (Doc. 11).
Plaintiff Gregory Edward Kucera appears pro se. For the
reasons below, the Court will: (i) grant Kucera's
Application; (ii) deny Kucera's Motion for Hearing; and
(iii) dismiss this case without prejudice for lack of
response to the instruction on his civil-rights-complaint
form to “[b]riefly state the background of your
case” is: “As a representative of the Central
Intelligence Agency I need to have Langley appoint a
prosecuting attorney to represent me.” Complaint at 2.
His responses to the instruction to identify the
constitutional rights he alleges to have been violated and to
state the facts that form the basis for his allegations is
“Classified.” Complaint at 3. Kucera's
response to the phrase “I believe that I am entitled to
the following relief” is “Classified.”
Complaint at 5. There are no other factual allegations in the
Application states: (i) his “[a]verage monthly income
amount during the past 12 months” was $200.00 in gifts;
(ii) he is unemployed; (iii) he has no assets; (iv) his
estimated monthly expenses total $120.00; and (v) he has $1,
300.00 in a checking account. Application at 1-5. Kucera
signed an “Affidavit in Support of the Application,
” stating that he “is unable to pay the costs of
these proceedings” and declaring under penalty of
perjury that the information he provided in the Application
is true. Application at 1.
January 5, 2018, Kucera filed a document that states:
“Please attach to No. 1:17-cv-0128-JB-KK [sic] I would
like to schedule a hearing within three weeks to determine
the course of action the DOJ will be taking on this claim.
Thank you. Gregory Edward Kucera Please see attachment for
Form 95 enclosed.” Motion for Hearing at 1. The
attachment is a “Standard Form 95 (REV. 2/2007)
Prescribed by Dept. of Justice 28 C.F.R. 14.2” titled
“CLAIM FOR DAMAGE, INJURY, OR DEATH.” Complaint
at 2. Kucera wrote “Classified” in the boxes
asking for information regarding the basis of the claim, the
nature of the property damage, the nature of the injury or
cause of death, and the amount of the claim. Complaint at 2.
REGARDING PROCEEDINGS IN FORMA PAUPERIS
statute for proceedings in forma pauperis
(“IFP”), 28 U.S.C. § 1915(a), provides that
a district 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 § 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
Menefee v. Werholtz, 368 Fed. App'x 879, 884
(10th Cir. 2010)(unpublished)(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. App'x 667, 669 (10th
Cir. 2008)(unpublished)(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.” Adkins v. E.I. DuPont de Nemours &
Co., 335 U.S. at 339 (internal quotation marks omitted).
While the district court should not deny a person the
opportunity to proceed under 28 U.S.C. § 1915(a) because
he or she is not “absolutely destitute, ” the
court may deny permission for a person to proceed IFP where
his or her monthly income exceeds his or her monthly expenses
by a few hundred dollars. Brewer v. City of Overland Park
Police Department, 24 Fed. App'x 977, 979 (10th Cir.
2002)(unpublished)(stating that a litigant whose monthly
income exceeded his monthly expenses by a few hundred dollars
according to his own accounting appeared to have sufficient
income to pay filing fees, and, thus, was not entitled to IFP
district court may grant a motion to proceed IFP even if the
complaint fails to state a claim and the court must thereby
dismiss the complaint pursuant to 28 U.S.C. §
1915(e)(2). See Buchheit v. Green, 705 F.3d
1157, 1160-61 (10th Cir. 2012)(“There is simply nothing
in the language of the statute [§ 1915, ] indicating
that such a dismissal must occur before the grant of a motion
to proceed IFP.”).
[I]f an application to proceed in forma pauperis is supported
by papers satisfying the requirements of 28 U.S.C.A. §
1915(a) leave to proceed should be granted, and then, if the
court discovers that the action is frivolous or improper or
that the allegations of poverty are untrue, it can dismiss
the proceeding under 28 U.S.C.A. § 1915(d).
Oughton v. United States, 310 F.2d 803, 804 (10th
Cir. 1962)(citations omitted).
district court has the discretion to dismiss an IFP complaint
sua sponte under § 1915(e)(2) “at any time if the
action . . . is frivolous or malicious; [or] fails to state a
claim upon which relief may be granted.” 28 U.S.C.
§ 1952(e)(2). The district court also may dismiss a
complaint sua sponte under rule 12(b)(6) of the Federal Rules
of Civil Procedure for failure to state a claim if “it
is ‘patently obvious' that the plaintiff could not
prevail on the facts alleged, and allowing him an opportunity
to amend his complaint would be futile.” Hall v.
Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991)(quoting
McKinney v. Okla. Dep't of Human Servs., 925
F.2d 363, 365 (10th Cir. 1991)). A plaintiff must allege
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). ...