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.

Gervais v. ALB. Regional FBI

United States District Court, D. New Mexico

November 19, 2018

JOSEPHINE GERVAIS, Plaintiff,
v.
ALB. REGIONAL FBI, Defendant.

          Josephine Gervais 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(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 jurisdiction.

         PROCEDURAL BACKGROUND

         Gervais 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.

         Gervais' 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.

         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[.]

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 status).[1]

         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 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 Cir. 1992).

         LAW REGARDING RULE 12(h)(3) AND ...


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.