United States District Court, D. New Mexico
BENNY M. ANAYA, Plaintiff,
CITY OF SOCORRO, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS AND DISMISSING THE COMPLAINT
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 12,
2018 (“Application”) and on Plaintiff's Civil
Rights Complaint Pursuant to 42 U.S.C. § 1983, Doc. 1,
filed February 12, 2018 (“Complaint”). For the
reasons stated below, the Court will GRANT
Plaintiff's Application and DISMISS
Plaintiff's Complaint without prejudice.
Plaintiff shall have 21 days from entry of this Order to file
an amended complaint. Failure to timely file an amended
complaint may result in dismissal of this case without
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). 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.
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 provided the following information: (i)
Plaintiff's average monthly income is $1, 500.00 in
retirement; and (ii) Plaintiff's monthly expenses
total $2, 706.00. The Court finds that Plaintiff is unable to
pay the costs of this proceeding because his monthly expenses
exceed his monthly income.
of Proceedings In Forma Pauperis
statute governing proceedings in forma pauperis
requires federal courts to dismiss an in forma
pauperis proceeding that “is frivolous or
malicious; ... 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). “[P]ro 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).
alleges that he was wrongfully terminated, and that
“incident #3 was not my fault. I told my supervisor
about the trailer hitch. The Director Supervisor Mike Lucero
went to City of Socorro safety manual & terminated me.
Negligence & misconduct.” Complaint at 3. Plaintiff
also alleges “I work[ed] for the City of Socorro for
twenty four years and two months. I am 70 years old. I
shouldn't of gotten this kind of treatment from him. This
is discrimination on him.” Complaint at 4. There are no
other factual allegations in the Complaint.
Court will dismiss Plaintiff's wrongful
termination/discrimination claim without prejudice for
failure to state a claim. Plaintiff makes the conclusory
allegation that he was discriminated against. However,
“conclusory allegations without supporting factual
averments are insufficient to state a claim on which relief
can be based . . . [and] in analyzing the sufficiency of the
plaintiff's complaint, the court need accept as true only
the plaintiff's well-pleaded factual contentions, not his
conclusory allegations.” Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). Although Plaintiff does not
expressly identify the type of alleged discrimination, it
appears that Plaintiff is asserting age discrimination
because he states he is 70 years old and should not have
received “this kind of treatment.” Complaint at
4. Plaintiff has not made sufficient factual allegations to
support an age discrimination claim. See Hinds v.
Sprint/United Management Co., 523 F.3d 1187, 1195 (10th
Cir. 2008) (for the Court to allow a claim to proceed, a
plaintiff must allege sufficient evidence, which for an age
discrimination claim consists of showing that plaintiff: (i)
was within a protected age group, (ii) was doing satisfactory
work, (iii) was discharged despite the adequacy of his or her
work, and (iv) has some evidence that the employer intended
to discriminate against him, such as showing that the
employer discharged the plaintiff but retained a younger
employee who held a similar position).
dismissed Plaintiff's only claim without prejudice, the
Court will dismiss Plaintiff's Complaint without
prejudice. Plaintiff shall have 21 days from entry of this
Order to file an amended complaint. Failure to timely file an
amended complaint may result in dismissal of this case
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 plaintiff's 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 ...