United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
7, 2019 Plaintiff filed Plaintiffs' Complaint and Request
for Injunction, Doc. 1, (“Complaint”), and
Plaintiffs' Application to Proceed in District Court
Without Prepaying Fees or Costs, Doc. 2,
(“Application”). Plaintiff Lisa Powers
(“Plaintiff”) is proceeding pro se on
her behalf and on behalf of her son, A.P.
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. Plaintiff
signed an affidavit stating she is unable to pay the costs of
these proceedings and provided the following information: (i)
Plaintiff's monthly income is approximately $360.00; (ii)
Plaintiff is unemployed; (iii) Plaintiff's monthly
expenses total approximately $1, 633.00; (iv) Plaintiff has
$5.00 in cash and no money in bank accounts; and (v)
Plaintiff's son, A.P., relies on Plaintiff for support.
The Court finds that Plaintiff is unable to pay the costs of
this proceeding because her monthly expenses exceed her
monthly income, she is unemployed, and she has only $5.00 in
alleges that Defendants' “harassment & rights
violations have resulted in physical injuries sustained by
police, prevented all employment for a year plus, the
inability to rent or obtain suitable housing, the
endangerment of my son.” Complaint at 3. Plaintiff
asserts that Defendants Lamar and Santa Fe Sheriff's
Office conspired to deprive Plaintiff of her due process and
equal protection rights, but Plaintiff does not allege
specific facts regarding the alleged conspiracy. See
Complaint at 5, 9. In addition to federal due process, equal
protection and cruel and unusual punishment claims, Plaintiff
asserts the following state-law claims: "intentional
infliction of emotional harm, pain & anguish resulting
from rights violations, false imprisonment, legal &
judicial harassment & misconduct, violations of NM
victim's rights, loss of employment 48000 per yr,
infliction of intentional economic disadvantaged, loss of
personal enjoyment, terror & intimidation.”
Complaint at 11. Plaintiff seeks the following relief:
“expungement of all charges, financial restitution to
cover housing, food & to obtain legal counsel not in
conflict w/ the case.” Complaint at 11.
Court will dismiss the claims Plaintiff asserts on behalf of
her son, A.P., because “[a] litigant may bring his own
claims to federal court without counsel, but not the claims
of others.” Fymbo v. State Farm Fire & Cas.
Co., 213 F.3d 1320, 1321 (10th Cir. 2000).
Lamar is a New Mexico district court judge. Plaintiff alleges
that Defendant Lamar had a conflict of interest when issuing
orders regarding Plaintiff because Plaintiff had dated
Defendant Lamar's son. See Complaint at 5.
Plaintiff also alleges that because of Defendant Lamar's
orders, Plaintiff has been falsely charged and arrested, has
lost custody of her son, and has been left homeless.
See Complaint at 5.
Court will dismiss Plaintiff's civil rights claims
against Defendant Lamar. “[S]tate court judges are
absolutely immune from monetary damages claims for actions
taken in their judicial capacity, unless the actions are
taken in the complete absence of all jurisdiction.”
Sawyer v. Gorman, 317 Fed.Appx. 725, 727 (10th Cir.
2008) (quoting Mireles v. Waco, 502 U.S. 9, 11-12
(1991)); see also Stump v. Sparkman, 435 U.S. 349,
356-57 (1978) (articulating broad immunity rule that a
“judge will not be deprived of immunity because the
action he took was in error, was done maliciously, or was in
excess of his authority”).
State of New Mexico Attorney General and Santa Fe District