United States District Court, D. New Mexico
Josephine Gervais 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(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 June 29, 2018 (Doc.
1)(“Complaint”); and (ii) the Plaintiff's
Application to Proceed in District Court Without Prepaying
Fees or Costs, filed June 29, 2018 (Doc.
2)(“Application”). Plaintiff Josephine Gervais
appears pro se. For the reasons set out below, the Court
will: (i) grant Gervais' Application; and (ii) dismiss
this case without prejudice for lack of subject-matter
asserts three causes of action -- stalking, sexual abuse, and
fetal homicide -- against Defendant Alb. Regional FBI
(“FBI”). She alleges the following facts
regarding the stalking cause of action: “The
surviellance [sic] of me was not work related. Illegal usage
of technologies that send subliminal noise in to the
unconcious [sic] mind. The doings of these two things was
stalking and since their effect was in my home,
trespassing.” Complaint at 3. Gervais alleges the
following facts regarding the sexual abuse cause of action:
“The subliminal messages, which are accessible to govt.
officials to mind control or distract a (terrorist, drug
dealer ect [sic] . . .) until they can get to them, were
instead used illegally to make me hear racist words, insults,
and feel like women were raping me.” Complaint at 3.
She alleges the following facts regarding the fetal homicide
cause of action: “The subliminal messages, some out of
concious [sic] hearing range, and some hearable conciously
[sic], were sent to my unconcious [sic] mind to try to
hypnotize mind control me until I experienced bouts of no
free will and hurt myself at times during pregnancy causing a
stillborn.” Complaint at 4.
Application states that: (i) her “[a]verage monthly
income amount during the past 12 months” was $750.00 in
disability; (ii) she is unemployed; (iii) she has no assets;
(iv) her estimated monthly expenses total $700.00; and (v)
she has no cash and no money in bank accounts. Application at
1-5. Gervais signed an “Affidavit in Support of the
Application, ” stating that she “is unable to pay
the costs of these proceedings” and declaring under
penalty of perjury that the information which she provided 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[.]
Menefee v. Werholtz, 368 Fed.Appx. 879, 884 (10th
Cir. 2010)(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.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 IFP] 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)(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
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
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 drafts,
but liberally construes the allegations. See
Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th
REGARDING RULE 12(h)(3) AND ...