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Aguilera v. City of Albuquerque

United States District Court, D. New Mexico

April 2, 2019

EDDIE AGUILERA, Plaintiff,
v.
CITY OF ALBUQUERQUE, DAVID GONZALES, and J. OGUINN, Defendants.

          ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND ALLOWING PLAINTIFF TO AMEND COMPLAINT

          HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE JUDGE

         THIS 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.

         Application to Proceed in forma pauperis

         The 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.

         Plaintiff 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[1] $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.

         Service on Defendants

         Section 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).

         The 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.

         The Complaint

         Plaintiff 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 ‚Äúthat any officer take part in any action [deemed] as a crime would be just as guilty as ...


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