United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
C. BRACK, SENIOR U.S. DISTRICT JUDGE.
MATTER comes before the Court on Plaintiff's
Application to Proceed in District Court Without Prepaying
Fees of Costs (Doc. 2), filed May 15, 2019
(“Application”), and on Plaintiff's Civil
Rights Complaint Pursuant to 42 U.S.C. § 1983 (Doc. 1),
filed May 15, 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 will grant 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
$789.89; and (iv) Plaintiff has $20.00 in a checking account.
The Court finds that Plaintiff is unable to pay the costs of
this proceeding because his monthly expenses equal 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 reports attached to the Complaint, indicate
the following factual background. Plaintiff was attempting to
buy a jug of juice at a store, became angry, swore at and
attempted to hit a man with the jug of juice. When three
employees attempted to escort Plaintiff out of the store,
Plaintiff punched one of the employees in the face and
attempted to kick other persons. The police arrived and took
Plaintiff into custody. Plaintiff states that Defendant is
the manager of the store but does not allege that Defendant
did anything to Plaintiff. (Compl. at 1, 3.) None of the
police reports attached to the Complaint mention Defendant.
(See Id. at 7-29.) Plaintiff indicates he was
“falsely charged” and suffered “public
humiliation” and “emotional distress.”
(Id. at 3-4.)
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 that Defendant deprived Plaintiff of a right
secured by federal law or conspired with state actors to
violate Plaintiffs federal rights. 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”); Beedle v. Wilson, 422 F.3d 1059, 1073
(10th Cir. 2005) (a plaintiff can state a cognizable §
1983 claim against private citizens if he adequately alleges
that the private citizen defendants conspired with state
actors to violate his federal rights).
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 “public
humiliation” and “emotional distress”
claims. 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 original
IS ORDERED that:
(i) Plaintiffs Application to Proceed in District Court
Without Prepaying Fees of Costs, Doc. 2, filed May ...