United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER comes before the Court on Plaintiff's
Application to Proceed in District Court Without Prepaying
Fees of Costs, Doc. 2, filed May 21, 2019
(“Application”), and on Plaintiff's Civil
Rights Complaint Pursuant to 42 U.S.C. § 1983, Doc. 1,
filed May 21, 2019 (“Complaint”).
to Proceed in forma pauperis
statute for proceedings 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). “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.” Id. at 339.
Court grants Plaintiff's Application to Proceed in
District Court Without Prepaying Fees or Costs. Plaintiff
signed an affidavit stating he is unable to pay the costs of
these proceedings and provided the following information: (i)
Plaintiff's monthly income is $789.89; (ii) Plaintiff is
unemployed; (iii) Plaintiff's monthly expenses total
$839.00; and (iv) Plaintiff has $310.21 in a checking
account. The Court finds that Plaintiff is unable to pay the
costs of this proceeding because his monthly expenses exceed
his monthly income, he is unemployed and he only has a small
amount of money in a bank account.
of Proceedings In Forma Pauperis
filed his Complaint using the form “Civil Rights
Complaint Pursuant to 42 U.S.C. § 1983.”
Plaintiff's Complaint, which is difficult to understand,
and the police report attached to the Complaint indicate the
following factual background. Defendant called the police and
reported that Plaintiff was causing a disturbance in
Defendant's store. Plaintiff left the store before the
police arrived. Defendant showed the police surveillance
video which allowed the police to locate and identify
Plaintiff. The police arrested Plaintiff on two outstanding
felony warrants. Plaintiff indicates he suffered
"emotional and public humiliation." Complaint at 3.
Complaint fails to state a claim pursuant to 42 U.S.C. §
1983 because Defendant is not a state actor and Plaintiff has
not alleged the violation of a right secured by the
Constitution and laws of the United States. See McCarty
v. Gilchrist, 646 F.3d 1281, 1285 (10th Cir.
2011)(“Section 1983 provides a federal civil remedy for
the deprivation of any rights, privileges, or immunities
secured by the Constitution by any person acting under color
of state law”); Hogan v. Winder, 762
F.3d 1096, 1112 (10th Cir. 2014) (quoting West
v. Atkins, 487 U.S. 42, 48 (1988)) ("Under 42
U.S.C. § 1983, ‘a plaintiff must allege the
violation of a right secured by the Constitution and laws of
the United States'”).
is proceeding in forma pauperis pursuant to 28
U.S.C. § 1915. The statute governing proceedings in
forma pauperis states “the court shall dismiss the
case at any time if the court determines that . . . the
action . . . is frivolous or malicious; ... fails to state a
claim on which relief may be granted; ... or seeks monetary
relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2). The Court
dismisses Plaintiffs civil rights claim pursuant to 42 U.S.C.
§ 1983 for failure to state a claim.
Court, having dismissed the only federal law claim and noting
there is no diversity jurisdiction, declines to exercise
supplemental jurisdiction over the "emotional and public
humiliation" claim. See 28 U.S.C. §
1367(c)(3) ("The district courts may decline to exercise
supplemental jurisdiction over a claim . . . if . . .the
district court has dismissed all claims over which it has
IS ORDERED that
(i) Plaintiff s Application to Proceed in District Court
Without Prepaying Fees or Costs, Doc. 2, filed May ...