United States District Court, D. New Mexico
BRANDON K. KUYKENDALL, Plaintiff,
STEVEN L. BELL, LORI GIBSON WILLARD, FREDDIE J. ROMERO, KEA W. RIGGS, DUSTIN K. HUNTER, RAYMOND L. ROMERO, NEW MEXICO HUMAN SERVICES DEPARTMENT CHILD SUPPORT ENFORCEMENT DIVISION, RICHARD L. KRAFT, KRISTEN A. WEGER, and LAURENCE J. BROCK, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS AND DISMISSING CASE WITHOUT
January 10, 2018, Plaintiff filed a COMPLAINT (Doc. No. 1)
arising out of alleged violations of his rights during
state-court child support and custody proceedings, along with
an APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING
FEES OR COSTS (Doc. No. 2) (Application). The Court will
grant Plaintiff's Application but will dismiss this case
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 the 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.
signed an affidavit declaring that he is unable to pay the
costs of these proceedings and provided the following
information: (i) he was employed part-time as a laborer
during the months of May, June, September, October and
December and earned approximately $6, 080.00 during that
time; (ii) his monthly expenses total up to $1, 100.00 not
including child support and guardian ad litem fees; (iii) he
has $47.00 in cash; and (iv) he owes $71, 000.00 in child
support. The Court finds that Plaintiff is unable to pay the
filing fee because of his low income, his indebtedness for
child support, his less than full-time employment, and his
monthly expenses that exceed his average monthly income.
Accordingly, the Court will grant Plaintiff's Application
to Proceed in District Court Without Prepaying Fees or Costs.
of Proceedings In Forma Pauperis
statute governing proceedings in forma pauperis
requires federal courts to dismiss an in forma
pauperis proceeding that “fails to state a claim
on which relief may be granted; ... or seeks monetary relief
against a defendant who is immune from such relief.”
See 28 U.S.C. § 1915(e)(2). “Dismissal of
a pro se complaint for failure to state a claim is
proper only where it is obvious that the plaintiff cannot
prevail on the facts he has alleged and it would be futile to
give him an opportunity to amend.” Kay v.
Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). “In
determining whether a dismissal is proper, we must accept the
allegations of the complaint as true and construe those
allegations, and any reasonable inferences that might be
drawn from them, in the light most favorable to the
plaintiff.” Kay v. Bemis, 500 F.3d at 1217.
The Court looks to the specific allegations in the complaint
to determine whether they plausibly support a legal claim for
relief, i.e. the factual allegations must be enough to raise
a right to relief above the speculative level. See
Id. at 1218 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007)). Dismissal of an in
forma pauperis complaint as frivolous is not an abuse of
discretion based on a determination that the pro se
litigant did not state a viable legal claim and that the
complaint consisted of little more than unintelligible
ramblings. Triplett v. Triplett, 166 Fed.Appx. 338,
339-340 (10th Cir. 2006). However, “pro se litigants
are to be given reasonable opportunity to remedy the defects
in their pleadings.” Hall v. Bellmon, 935 F.2d
1106, 1110 n.3 (10th Cir. 1991).
case arises out of a child support/child custody dispute that
was adjudicated in state court. Plaintiff alleges violations
of his constitutional rights during the state court
proceedings. Defendants Steven L. Bell, Freddie J. Romero,
Kea W. Riggs, Dustin K. Hunter and Raymond L. Romero were
state court judges. See Complaint at 1-2. Defendant
Lori Gibson Willard was appointed by Defendant Bell as an
“arm of the court;” her duties are not specified
but she may be a “guardian ad litem/visitation
facilitator.” Complaint 1, 3. Defendant Kristen A.
Weger is the mother of the child. Defendants Richard L. Kraft
and Laurence J. Brock are attorneys who represented Defendant
Weger. Plaintiff seeks the following relief:
a) To have my parental rights fully restored.
b) To be awarded full legal custody of Kolby Cub Weger
c) To have the New Mexico Human Services Department-Child
Support Enforcement Division refund all confiscated money
“property” plus interest since the order was
ruled upon during the ex-parte OSC hearing on 8/7/2015. I was
unable to defend myself as the record clearly shows
“RETURNED NOT SERVED” on 8/7/2015. I was not
allowed to appear in my own defense, but have been
financially destroyed as the result.
d) To have my New Mexico Driver's License reinstated
immediately at no expense.
e) To be fairly compensated for each and every day that my
Driving Privileges and Business License was revoked which
rendered me unable ...