United States District Court, D. New Mexico
JOSEPH M. CASTILLO, Plaintiff,
UNITED STATES POSTAL SERVICE, CITY OF ALBUQUERQUE, DURHAM SCHOOLS, SOCIAL SECURITY ADMINISTRATION, NEW MEXICO TAX AND MOTOR VEHICLE DEPARTMENT, HERRERA BUS, and LAS COLINAS, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS AND DISMISSING THE CASE WITHOUT
VAZQUEZ UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on pro se Plaintiffs
Financial Affidavit, Application to Proceed In Forma Pauperis
and Order (28 USC 1915), Doc. 3, filed November 30, 2017
("Application"), and on Plaintiffs Civil Rights
Complaint Pursuant to 42 U.S.C. § 1983, Doc. 1, filed
November 30, 2017 ("Complaint"). For the reasons
stated below, the Court will GRANT Plaintiffs Application and
DISMISS this case without prejudice for lack of subj
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
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 Plaintiffs 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 total monthly income is
$192.00 in food stamps; (ii) he is unemployed; and (iii)
almost all of his assets have been seized. The Court finds
Plaintiff is unable to pay the costs of these proceedings
because of his low monthly income and lack of assets. 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
filed his Complaint using the form "Civil Rights
Complaint Pursuant to 42 U.S.C. § 1983." In the
section of the form Complaint that prompts Plaintiff for
information regarding jurisdiction, Plaintiff marked the box
indicating that Defendants were acting under color of state
law and wrote:
US Constitution Bible I swear to defend the Constitution so
help me God of the Bible Jesus "Mental Illness."
EEOC Title VII 11/29/16 EEO Suit Rights 9/22/17 90 days.
I Joseph Castillo - Since Oct 2001 Protected Title VII No
Redress invoked USC 2OOOe seq. Rehabilitation Act of 1973, as
Amende 29 USC 791 794c Request Court Appointed represent me.
[sic] Complaint at 1-2. In response to the form
Complaint's instructions to state the background of the
case, to identify the constitutional rights that Plaintiff
alleges have been violated and to provide supporting facts,
Plaintiff attached 21 typewritten pages which are largely
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. References to
constitutional rights and rights under federal law, without
factual allegations supporting jurisdiction, are not
sufficient to establish jurisdiction.
Court will dismiss the Complaint without prejudice for lack
of subject-matter 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 ...