United States District Court, D. New Mexico
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND
ALLOWING PLAINTIFF TO AMEND COMPLAINT
HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE
MATTER comes before the Court on Plaintiff's
Civil Rights Complaint Pursuant to 42 U.S.C.
§ 1983, (Doc. 1), (“Complaint”), and on
Plaintiff's Application to Proceed in
District Court Without Prepaying Fees or Costs, (Doc.
2), both filed March 28, 2019.
to Proceed in forma pauperis
statute for proceeding 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) (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 in forma pauperis] was intended for the
benefit of those too poor to pay or give security for costs .
. . .” See 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.
signed an affidavit declaring that he is unable to pay the
costs of these proceedings and stated: (i) his average
monthly income amount during the past 12 months was $1,
500.00; (ii) he does not expect any income next month; (iii)
his monthly expenses include $453.00 in alimony, maintenance,
and support paid to others; and (iv) he has $1.75 in cash and
a bank account. The Court grants Plaintiff's
Application to Proceed in District Court Without
Prepaying Fees or Costs, (Doc. 2), because he signed an
affidavit declaring that he is unable to pay the costs of
these proceedings and because of his low monthly income.
1915 provides that the “officers of the court shall
issue and serve all process, and perform all duties in
[proceedings in forma pauperis]”). 28 U.S.C.
§ 1915(d). Rule 4 provides that:
At the plaintiff's request, the court may order that
service be made by a United States marshal or deputy marshal
or by a person specially appointed by the court. The court
must so order if the plaintiff is authorized to proceed in
forma pauperis under 28 U.S.C. § 1915 or as a seaman
under 28 U.S.C. § 1916.
Fed. R. Civ. P. 4(c)(3).
Court will not order service of Summons and the Complaint on
Defendants at this time because Plaintiff has not provided
the Court with the Defendants' addresses. The Court will
order service if Plaintiff files a motion for service which
includes the Defendants' addresses.
alleges that on October 19, 2017, Defendants Gonzales and
Oguinn assaulted Plaintiff while he was handcuffed during an
arrest. See (Doc. 1 at 2-3). Plaintiff also alleges
that after the alleged assault several officers watched a
video of the assault and discussed “how they would
cover it up.” Id. at 7. After Plaintiff
advised the other officers “that any officer take part
in any action [deemed] as a crime would be just as guilty as