United States District Court, D. New Mexico
CHLOE A. LUCERO, Plaintiff,
MAX LANDIS, et al., Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
C. BRACK, SENIOR U.S. DISTRICT JUDGE
MATTER comes before the Court on Plaintiff's
Complaint for a Civil Case (Doc. 1 (“Compl.”)),
filed August 16, 2018, Application to Proceed in District
Court Without Prepaying Fees or Costs (Doc. 2), filed August
16, 2018 (“Application”), Motion Requesting
Appointment of Counsel (Doc. 6), filed September 12, 2018,
Second Motion to Appoint Counsel (Doc. 8), filed October 15,
2018, Motion to Amend Complaint (Doc. 9), filed October 18,
2018, and Motion for Protection (Doc. 10), filed November 5,
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) (quoting Ragan v. Cox, 305 F.2d 58, 60
(10th Cir. 1962)) (subsequent citation omitted). “[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.Appx. 667, 669 (10th Cir. 2008) (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.” Id. at 339 (quotation marks omitted).
Court grants Plaintiff's Application to Proceed in
District Court Without Prepaying Fees or Costs. Plaintiff
signed an affidavit declaring that she is unable to pay the
costs of these proceedings and that the following information
is true: (i) her income amount expected next month is $1,
096.00; (ii) her total monthly expenses are $1, 164.12; (iii)
she has a negative balance in a bank account, and (iv) she is
unemployed. The Court finds that Plaintiff is unable to pay
the filing fee because her monthly expenses exceed her
monthly income and she is unemployed.
Plaintiff's Motion to Amend seeks to add: (i) several
criminal statutes as the basis for jurisdiction: (ii) a page
of text to the Statement of Claim in her original Complaint;
and (iii) additional relief sought. (See Doc. 9.)
Federal Rule of Civil Procedure 15(a)(1) provides:
A party may amend its pleading once as a matter of course
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or
21 days after service of a motion under Rule 12(b), (e), or
(f), whichever is earlier.
have not served a responsive pleading or a motion under Rule
12(b), (e), or (f). Consequently, Plaintiff may amend her
Complaint as a matter of course. As explained below, however,
the Court will dismiss Plaintiff's case for failure to
state a claim. Consequently, the Court will deny her Motion
to Amend as moot.