United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER comes before the Court, under 28 U.S.C. § 1915
and rule 12(b)(6) of the Federal Rules of Civil Procedure,
on: (i) the Plaintiff's Civil Rights Complaint Pursuant
to 42 U.S.C. § 1983, filed February 28, 2019 (Doc.
1)(“Complaint”); and (ii) the Plaintiff's
Application to Proceed in District Court without Prepaying
Fees or Costs, filed February 28, 2019 (Doc.
2)(“Application”). Plaintiff Jacob Vigil appears
pro se. For the reasons set out below, the Court will: (i)
grant Vigil's Application; and (ii) dismiss this case
without prejudice for failure to state a claim upon which
relief can be granted.
filed his Complaint using the form “Civil Rights
Complaint Pursuant to 42 U.S.C. § 1983.” Complaint
at 1. Vigil alleges: “John Doe, using Google LLC's
online platform, is violating my copyrights and trademarks.
This is a copyright violater [sic] who I'm attempting to
identify via administrative subpoena.” Complaint at 2.
Vigil states: “The D.M.C.A. copyright takedown notice
states the user email addresses of the copyright
infringer.” Complaint at 3. Vigil attaches a
“Safe Harbor DMCA takedown notice” to the
Complaint. See “Safe Harbor” DMCA
takedown notice, filed February 28, 2019, (Doc. 1-1). Vigil
seeks: “Identifying information of the users listed in
the D.M.C.A. take down notice, including names, addresses,
and phone numbers.” Complaint at 5.
Application states that: (i) he is “unable to pay the
costs of these proceedings”; (ii) he is
“unemployed”; (iii) he has no “take-home
pay or wages” or “Other Income”; (iv) he
has “less than $50” “in cash or in a
checking or savings account”; and (v) his
“housing, transportation, utilities, or loan payments,
or other regular monthly expenses” include “RENT
$680 utilit[i]es (I am late. Borrowing from
friends).” Application at 1-2. Vigil signed a
“Declaration, ” declaring under penalty of
perjury that the information he provides in the Application
is true. Application at 2.
REGARDING PROCEEDINGS IN FORMA PAUPERIS
statute for proceedings in forma pauperis
(“IFP”), 28 U.S.C. § 1915(a), provides that
a district 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 which the
person possesses and that the person is unable to pay such
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. App'x 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. App'x 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 . . .
.” 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.” Adkins v. E.I. DuPont de Nemours &
Co., 335 U.S. at 339 (internal quotation marks omitted).
While the district court should not deny a person the
opportunity to proceed under 28 U.S.C. § 1915(a) simply
because he or she is not “absolutely destitute, ”
the court may deny permission for a person to proceed IFP
where his or her monthly income exceeds his or her monthly
expenses by a few hundred dollars. Brewer v. City of
Overland Park Police Dep't, 24 Fed. App'x 977,
979 (10th Cir. 2002)(stating that a litigant whose monthly
income exceeded his monthly expenses by a few hundred dollars
according to his own accounting appeared to have sufficient
income to pay filing fees, and, thus, was not entitled to IFP
district court may grant a motion to proceed IFP even if the
complaint fails to state a claim and the court must thereby
dismiss the complaint pursuant to 28 U.S.C. §
1915(e)(2). See Buchheit v. Green, 705 F.3d
1157, 1160-61 (10th Cir. 2012)(“There is simply nothing
in the language of the statute [regarding IFP proceedings, 28
U.S.C. § 1915, ] indicating that such a dismissal must
occur before the grant of a motion to proceed IFP.”).
[I]f an application to proceed in forma pauperis is supported
by papers satisfying the requirements of 28 U.S.C.A. §
1915(a) leave to proceed should be granted, and then, if the
court discovers that the action is frivolous or improper or
that the allegations of poverty are untrue, it can dismiss
the proceeding under 28 U.S.C.A. § 1915(d).
Oughton v. United States, 310 F.2d 803, 804 (10th
Cir. 1962)(citations omitted).
district court has the discretion to dismiss an IFP complaint
sua sponte under § 1915(e)(2) “at any time if the
action . . . is frivolous or malicious; [or] fails to state a
claim upon which relief may be granted.” 28 U.S.C.
§ 1952(e)(2). The district court also may dismiss a
complaint sua sponte under rule 12(b)(6) of the Federal Rules
of Civil Procedure for failure to state a claim if “it
is ‘patently obvious' that the plaintiff could not
prevail on the facts alleged, and allowing him an opportunity
to amend his complaint would be futile.” Hall v.
Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991)(quoting
McKinney v. Okla. Dep't of Human Servs., 925
F.2d 363, 365 (10th Cir. 1991)). A plaintiff must allege
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570
(2007)(“Twombly”). In reviewing the
complaint, the district court applies the same legal
standards applicable to pleadings that an attorney drafts,
but liberally construes the allegations. See Northington
v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992).
REGARDING PRO SE LITIGANTS
party proceeds pro se, a court construes his or her pleadings
liberally and holds them “to a less stringent standard
than [that applied to] formal pleadings drafted by
lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). “[I]f the Court can reasonably read
the pleadings to state a valid claim on which [Petitioner]
could prevail, it should do so despite [his] failure to cite
proper legal authority, his confusion of various legal
theories, his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements.” Hall v.
Bellmon, 935 F.2d at 1110. The Court will not, however,
“assume the role of advocate for the pro se
litigant.” Hall v. Bellmon, 935 F.2d at 1110.
“[P]ro se status does not ...