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Powers v. Lamar

United States District Court, D. New Mexico

June 13, 2019

LISA POWERS and A.P., Plaintiffs,


         On May 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.

         Application to Proceed in forma pauperis

          The 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.

         The 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 cash.

         The Complaint

         Plaintiff 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.

         Plaintiff's Son, A.P.

         The 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).

         Defendant Lamar

         Defendant 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.

         The 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”).

         Defendants State of New Mexico Attorney General and Santa Fe District ...

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