United States District Court, D. New Mexico
Paul Sherrell, Jr. Albuquerque, New Mexico Plaintiff pro se
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER comes before the Court, under 28 U.S.C.
§ 1915 and rule 12(b)(6) of the Federal Rules of Civil
Procedure, on: (i) the Plaintiff's Civil Rights Complaint
Pursuant to 42 U.S.C. § 1983, filed May 1, 2018 (Doc.
1)(“Complaint”); and (ii) the Plaintiff's
Application to Proceed in District Court Without Prepaying
Fees or Costs, filed May 1, 2018 (Doc.
3)(“Application”). Plaintiff Dennis Paul
Sherrell, Jr., appears pro se. For the reasons set out below,
the Court will: (i) grant Sherrell's Application; and
(ii) dismiss this case without prejudice for failure to state
a claim upon which relief can be granted.
filed his Complaint using the form “Civil Rights
Complaint Pursuant to 42 U.S.C. § 1983.” Sherrell
alleges that: (i) he was “[e]scorted off campus in
squad-car (patrol vehicle) & interrogated of Protected
Health Information under threat of arrest for trespassing at
Publicly Funded University;” (ii) an “Emergency
Ban [was] Enacted;” and (iii) “Denied medical
services & records.” Complaint at 2-4. Besides
these factual allegations, Sherrell provides little else to
support his claim for relief. See Complaint at 2-4.
Sherrell references 18 U.S.C. § 245, Federally protected
activities, 18 U.S.C. § 241, Conspiracy against rights,
and “Visitor Polic[ies]” relating to
“Emergency Analog, ” “Hacking, ”
“Potential for great harm, ” and
“Interfering with Freedom of Speech.” Complaint
Application states that: (i) his “[a]verage monthly
income amount during the past 12 months” was
“Aprox. $1010.00” in disability,
public-assistance and other sources; (ii) he is unemployed;
(iii) his “average monthly expenses” total
$1010.00; and (iv) he has no cash and no money in bank
accounts. Application at 1-5. Sherrell 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 provides in the Application is true.
Application 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 . . . .
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.Appx. 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 Dep't, 24 Fed.Appx. 977');">24 Fed.Appx. 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).
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
court determines that . . . the action . . . is frivolous or
malicious; [or] fails to state a claim upon which relief may
be granted . . . .” 28 U.S.C. § 1915(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, 1110 (10th Cir. 1991)(internal quotation marks
same legal standards applicable to pleadings that an attorney
drafts, but liberally construes the allegations. See
Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th