United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER comes before the Court, under 28 U.S.C.
§ 1915 and rule 12(h)(3) of the Federal Rules of Civil
Procedure, on: (i) the Plaintiff's Civil Rights Complaint
Pursuant to 42 U.S.C. § 1983, filed January 30, 2018
(Doc. 1)(“Complaint”); (ii) the Plaintiff's
Application to Proceed in District Court without Prepaying
Fees or Costs, filed January 30, 2018 (Doc. 2)
(“Application”); and (iii) the Plaintiff's
Motion for Hearing, filed February 9, 2018 (Doc. 5).
Plaintiff Gregory Edward Kucera appears pro se. For the
reasons set out below, the Court will: (i) grant Kucera's
Application; (ii) deny Kucera's Motion for Hearing; and
(iii) dismiss this case without prejudice for lack of
response to the instruction on his civil-rights-complaint
form to “[b]riefly state the background of your case,
” is: “This is a federal tort claim action. It
purports to show loss of life and property due to injury and
harm associated with my relationships to the Central
Intelligence Agency.” Complaint ¶ B(1), at 2. His
response to the instruction to identify the constitutional
rights he alleges to have been violated is “Federal
Tort Claim Action.” Complaint ¶ C(1), at 3. His
response to the instruction to state the facts that form the
basis for his allegations is: “Classified and/or
available to representing attorney, once appointed. Please
review Social Security number for further information.”
Complaint ¶ C(A)(2), at 3. His response to the
instruction to identify the constitutional rights that have
been violated and to state the facts that form the basis for
his allegations regarding “Count II” is
“Classified.” Complaint ¶ C(1)(B)(1), at 3.
Kucera indicates that he “previously sought informal or
formal releif [sic] from the appropriate administrative
officials regarding the acts complained of in Part C”
and describes how he sought the relief and results as:
“Yes, case sealed at this courthouse was mishandled.
Was also a federal tort claim act.” Complaint ¶
E(1), at 5. There are no other factual allegations in the
Complaint. Kucera's response to the phrase “I
believe that I am entitled to the following relief” is:
“Please see included Standard 95 included. Further, I
require a federal attorney to be appointed to represent me. I
believe this is pivotal for the claim to be validated.
Further I wish for the DOJ to deliver this form themselves to
the CIA in a time appropriate manner.” Complaint ¶
E(1), at 5.
Application states: (i) his “[a]verage monthly income
amount during the past 12 months” was $470.00 in
disability and $97.00 in public assistance; (ii) he is
unemployed; (iii) he has no assets; (iv) his estimated
monthly expenses total $200.00; and (v) he has $1, 700.00 in
a checking account. Application at 1-5. Kucera signed an
“Affidavit in Support of the Application, ”
stating that he “is unable to pay the costs of these
proceedings” and declaring under penalty of perjury
that the information he provided in the Application is true.
Application at 1.
February 9, 2018, Kucera filed a document that states:
“I would like to request a [sic] to have a hearing at
your earliest convenience.” Motion for Hearing at 1.
REGARDING PROCEEDINGS IN FORMA PAUPERIS
statute for proceedings in forma pauperis
(“IFP”), 28 U.S.C. § 1915(a), provides that
a district 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. App'x. 879, 884
(10th Cir. 2010)(unpublished)(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. App'x. 667, 669
(10th Cir. 2008)(unpublished)(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.” Adkins v.
E.I. DuPont de Nemours & Co., 335 U.S. at 339
(internal quotation marks omitted). While the district court
should not deny a person the opportunity to proceed under 28
U.S.C. § 1915(a) simply because he or she is not
“absolutely destitute, ” the court may deny
permission for a person to proceed IFP where his or her
monthly income exceeds his or her monthly expenses by a few
hundred dollars. Brewer v. City of Overland Park Police
Department, 24 Fed. App'x. 977, 979 (10th Cir.
2002)(unpublished)(stating that a litigant whose monthly
income exceeded his monthly expenses by a few hundred dollars
according to his own accounting appeared to have sufficient
income to pay filing fees, and, thus, was not entitled to IFP
district court may grant a motion to proceed IFP even if the
complaint fails to state a claim and the court must thereby
dismiss the complaint pursuant to 28 U.S.C. §
1915(e)(2). See Buchheit v. Green, 705 F.3d
1157, 1160-61 (10th Cir. 2012)(“There is simply nothing
in the language of the statute [regarding IFP proceedings, 28
U.S.C. § 1915, ] indicating that such a dismissal must
occur before the grant of a motion to proceed IFP.”).
[I]f an application to proceed in forma pauperis is supported
by papers satisfying the requirements of 28 U.S.C.A. §
1915(a) leave to proceed should be granted, and then, if the
court discovers that the action is frivolous or improper or
that the allegations of poverty are untrue, it can dismiss
the proceeding under 28 U.S.C.A. § 1915(d).
Oughton v. United States, 310 F.2d 803, 804 (10th
Cir. 1962)(citations omitted).
district court has the discretion to dismiss an IFP complaint
sua sponte under § 1915(e)(2) “at any time if the
action . . . is frivolous or malicious; [or] fails to state a
claim upon which relief may be granted.” 28 U.S.C.
§ 1952(e)(2). The district court also may dismiss a
complaint sua sponte under rule 12(b)(6) of the Federal Rules
of Civil Procedure for failure to state a claim if “it
is ‘patently obvious' that the plaintiff could not
prevail on the facts alleged, and allowing him an opportunity
to amend his complaint would be futile.” Hall v.
Bellmon, 935 F.2d 1106, 1109
Cir. 1991)(quoting McKinney v. Okla. Dep't of Human
Servs., 925 F.2d 363, 365 (10th Cir. 1991)). A plaintiff
must allege “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). In reviewing the
Complaint, the district court applies the same legal
standards applicable to pleadings that an attorney ...