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Sherrell v. University of New Mexico

United States District Court, D. New Mexico

November 13, 2018

DENNIS PAUL SHERRELL, JR., Plaintiff,
v.
UNIVERSITY OF NEW MEXICO, GREG GOLDEN, FNU LEARNER, and FNU LNU, Defendants.

          Dennis Paul Sherrell, Jr. Albuquerque, New Mexico Plaintiff pro se

          MEMORANDUM OPINION AND ORDER OF DISMISSAL

         THIS 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.

         PROCEDURAL BACKGROUND

         Sherrell 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 at 3.

         Sherrell's 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.

         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 . . . .

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)).[1] “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).[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 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 Cir. 1992).

         LAW REGARDING ...


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