Kucera v. Central Intelligence Agency

          MEMORANDUM OPINION AND ORDER OF DISMISSAL

         THIS 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 subject-matter jurisdiction

         PROCEDURAL BACKGROUND

         Kucera's 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.”^[1] Complaint ¶ E(1), at 5.

         Kucera's 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.

         On 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.

         LAW REGARDING PROCEEDINGS IN FORMA PAUPERIS

         The 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 status).^[2]

         The 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).

         The 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

         (10th 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 ...