Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lucero v. Landis

United States District Court, D. New Mexico

November 8, 2018

CHLOE A. LUCERO, Plaintiff,
v.
MAX LANDIS, et al., Defendants.

          MEMORANDUM OPINION AND ORDER OF DISMISSAL

          ROBERT C. BRACK, SENIOR U.S. DISTRICT JUDGE

         THIS 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, 2018.

         Application to Proceed in forma pauperis

         The 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).

         The 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.

         Motion to Amend

          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 within:
(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.

         Defendants 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.

         Dismissal ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.