United States District Court, D. New Mexico
CHRISTOPHER J. MULDROW, Plaintiff,
GREGGORY D. HULL, in his individual and official capacity as the current Mayor of Rio Rancho, CITY OF RIO RANCHO, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS AND DENYING REQUEST FOR TEMPORARY
RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION
MATTER comes before the Court on pro se
Plaintiff's Application to Proceed in District Court
without Prepaying Fees or Costs, Doc. 2, filed February 6,
2018 (“Application”), and on Plaintiff's
Complaint for Declaratory and Injunctive Relief and Damages,
Doc. 1, filed February 6, 2018 (“Complaint”). For
the reasons stated below, the Court will
GRANT Plaintiff's Application and
DENY Plaintiff's request for a temporary
restraining order and/or preliminary injunction.
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 and his spouse's
combined average monthly income during the past 12 months is
$1, 500.00; and (ii) his and his spouse's combined
monthly expenses are approximately $1, 776.00. The Court
finds Plaintiff is unable to pay the costs of these
proceedings because his and his spouse's combined monthly
expenses exceed their combined monthly income. 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”).
for Temporary Restraining Order and/or Preliminary
is currently running for Mayor of the City of Rio Rancho
(“City”). See Complaint at 1. On January
12, 2018, Defendants granted a community organization a
permit to hold a candidate forum in a library owned by the
City. On January 19, 2018, Defendants notified the community
organization “that they were revoking the permit
because no mayoral candidate forums were permitted at the
library, however, shortly after Defendants allowed [another
community organization] to host a mayoral candidate forum in
the auditorium at the library on January 30, 2018.”
Complaint at 1-2. “Defendants claim that the decision
to revoke the permit was based on [a] city ordinance”
which prohibits the use of public resources “to further
partisan campaign purposes or to influence the outcome of an
election.” Complaint at 3. Plaintiff alleges:
Defendants' revocation of permit was based on viewpoints
and was not necessary to achieve any compelling government
interest, in violation of the First and Fourteenth Amendments
and the revocation was not narrowly tailored to a substantial
government interest, and did not leave open alternative means
of communication. The Ordinance is overly broad because it is
not narrowly drawn or necessary to achieve any compelling
government interest and unconstitutional because it limits
freedom of political speech and assembly in traditional
facilities such as parks as well as libraries.
at 4. Plaintiff states that “Defendants' revocation
of the requested permit violated-and, unless enjoined by this
Court, will continue to violate-Plaintiff's rights to
freedom of speech, assembly, and petition as guaranteed by
the First and Fourteenth Amendments to the United States
Constitution.” Complaint at 4. Plaintiff asks the Court
to “Enter a temporary restraining order and/or
preliminary injunction enjoining Defendants to permit the
candidate forum to go on as planned in the Library on
February 17, 2018.” Complaint at 4. Plaintiff states
that Defendants have been notified of his request for a
temporary restraining order. See Information Sheet
for T.R.O., Doc. 4, filed February 6, 2018. Defendants have
not yet been served with a summons and copy of the Complaint,
and have not entered an appearance in this case.
Complaint requests that the Court “enter a temporary
restraining order and/or preliminary injunction enjoining
Defendants to permit the candidate forum to go on as planned
in the Library on February 17, 2018.” Complaint at 4.
To obtain a preliminary injunction, Plaintiff “must
show that four factors weigh in his favor: (1) [he] is
substantially likely to succeed on the merits; (2) [he] will
suffer irreparable injury if the injunction is denied; (3)
[his] threatened injury outweighs the injury the opposing
party will suffer under the injunction; and (4) the
injunction would not be adverse to the public
interest.” Awad v. Ziriax, 670 F.3d 1111, 1125
(10th Cir. 2012).
Court will not enter a temporary restraining order or
preliminary injunction at this time because Plaintiff has not
shown that the four factors weigh in his favor. Plaintiff has
not shown that he is likely to succeed on the merits.
Plaintiff makes the conclusory allegations that the
revocation of the permit “was based on viewpoints,
” and that the revocation and the ordinance are
“not necessary to achieve any compelling government
interest, ” but he does not make any factual
allegations or cite any legal authority showing that the
revocation of the permit violated his constitutional rights
or that the ordinance is unconstitutional. Complaint at 2, 4.
Plaintiff also does not set forth any argument or authority
addressing any injury to Defendants that might result from
them not enforcing the ordinance or whether an injunction
would be adverse to the public interest. See Heideman v.
South Salt Lake City, 348 F.3d 1182, 1191 (10th Cir.
2003) (“Although the presumption of constitutionality
accorded a municipal ordinance is less than that accorded an
Act of Congress, especially in a case involving an explicitly
enumerated constitutional right, the ability of a city to
enact and enforce measures it deems to be in the public
interest is still an equity to be considered in balancing
1915 provides that the “officers of the court shall
issue and serve all process, and perform all duties in
[proceedings in forma pauperis]”). ...