United States District Court, D. New Mexico
Benjamin Archuleta Plaintiff pro se.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER comes before the Court on: (i) the
Plaintiff's Civil Rights Complaint Pursuant to 42 U.S.C.
§ 1983, 1981-1985, filed May 5, 2017 (Doc.
1)(“Complaint”); (ii) the Plaintiff's
Application to Proceed in District Court without Prepaying
Fees or Costs, filed May 5, 2017 (Doc.
2)(“Application”); and (iii) the Plaintiff's
Motion for Leave to Proceed on Appeal without Prepayment of
Costs or Fees In Re Mandamus Remand Sovereign Grand Jury
Muslim Elect Ministrative Order Original Habeas Corpus
Jurisdiction, filed October 3, 2017 (Doc. 9) (“Motion
for Leave to Proceed on Appeal without Prepayment of Costs or
Fees”). Plaintiff Benjamin Archuleta appears pro se.
For the reasons set out below, the Court will: (i) grant
Archuleta's Application; (ii) dismiss this case without
prejudice for lack of subject-matter jurisdiction; and (iii)
deny as premature Archuleta's Motion for Leave to Proceed
on Appeal without Prepayment of Costs or Fees.
Complaint's caption identifies one defendant:
“James Charles Sanchez.” Complaint at 1. The
“Jurisdiction” section of the Complaint
identifies two defendants: (i) “1835-NM-314 Los Lunas,
N.M. 87031”; and (ii) “James Charles Sanchez,
” with an address of “1835-NM-314 Los Lunas, N.M.
87031.” Complaint ¶ A(2), at 1-2. The
Thirteenth Judicial District Court, State of New Mexico's
address is 1835 Highway 314 SW, Los Lunas, New Mexico 87031.
See Court Directory, New Mexico Courts,
“James Lawrence Sanchez” is identified as a
Thirteenth Judicial District judge. See Court Directory, New
My father (Alejandro Archuleta) Pass on in 2014 Prior he
stated to me what is what of his estate. Mr. James Charles
Sanchez allowed a Ms. [R]ebecca Martinez to Counsel without
notice. She is not related and for that reason [there] was
[willful] error. Upon Mandate [there] was no [receipt] of
transmittal otherwise barring Justice Law and equity of the
Deceased and my Inherent, natural and [reserved] rights now
invoked for relief.
¶ B(1), at 2 (alterations added). Archuleta indicates
that he had begun another lawsuit dealing with the same facts
involved in this action in the “13th Judicial
Court” and that the issue in the previous case was
“Conveyance of Property to My Custody.” Complaint
¶ D(1)(d), at 4. Archuleta states that the state court
case is “closed, not appealed.” Complaint ¶
D(1)(c), at 4. In the case now before the Court, Archuleta
seeks “Conveyance of Property” at a Los Lunas
address and/or $250, 000.00. Complaint ¶ E(1), at 5;
id. at 7.
Application to proceed in forma pauperis states: (i) his
“[a]verage monthly income amount during the past 12
months” was $1, 200.00 in disability income; (ii) he is
unemployed; (iii) he has no assets; (iv) his estimated
monthly expenses total $807.00; and (v) “Medicare does
not cover Dental and Vision.” Application at 1-5.
Archuleta 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 that he provides in
the Application is true. Application at 1.
October 3, 2017, Archuleta filed his Motion for Leave to
Proceed on Appeal without Prepayment of Costs or Fees.
Archuleta has not filed a notice of appeal in this case.
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 [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 F. 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 F. 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 F. 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 [regarding IFP proceedings, 28
U.S.C. § ...