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Gabaldon v. Sedillo

United States District Court, D. New Mexico

January 26, 2018

DAVID A. GABALDON, Plaintiff,
v.
FRANK A. SEDILLO, and DANIEL E. RAMCZK, Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS. DISMISSING THE CASE WITHOUT PREJUDICE AND ORDER TO SHOW CAUSE

          MARTHA VAZQUEZ, UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before the Court on pro se Plaintiffs Application to Proceed in District Court Without Prepaying Fees or Costs, Doc. 2, filed November 7, 2017 ("Application") and on Plaintiffs Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, Doc. 1, filed November 7, 2017 ("Complaint"). For the reasons stated below, the Court will GRANT Plaintiffs Application and DISMISS this case without prejudice for lack of subject-matter jurisdiction. Plaintiff shall, within 14 days of entry of this Order, show cause why the Court should not impose filing restrictions.

         Application to Proceed in forma pauperis

         The 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).

         The 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. 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 life"). Plaintiff also asserts he is homeless. See Complaint at 6.

         Jurisdiction

         Plaintiff filed his Complaint using the form "Civil Rights Complaint Pursuant to 42 U.S.C. § 1983." Plaintiff did not fill out the portion of the form which prompts him for information regarding jurisdiction. Plaintiff attached several handwritten pages to his Complaint. Those pages list several of his cases in Bernalillo County Metropolitan Court presided over by Defendants Sedillo and Ramczk, and contain various allegations regarding his ability to pay court fees, his homelessness, some matters that he apparently filed with the Albuquerque Police Department, and his attempts to get the Bernalillo County District Attorney's Office to place him in a safe house. One of the handwritten pages states: "A. Jurisdiction To: United State Magistrate Judge to be assinged to of Metropolitan Court Judges in those case." [sic] Complaint at 5.

         As the 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"). Plaintiffs 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. Nor does it allege any facts that would support diversity or federal question jurisdiction.

         The Court will dismiss the Complaint without prejudice for lack of 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) ("[Dismissals for lack of jurisdiction should be without prejudice because the court, having determined that it lacks jurisdiction over the action, is incapable of reaching a disposition on the merits of the underlying claims.1').

         Service on Defendants

         Section 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 plaintiffs 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 ...

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