United States District Court, D. New Mexico
Smith Albuquerque, New Mexico Plaintiff pro se
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 November 15, 2018
(Doc. 5)(“Amended Complaint”); (ii) the
Plaintiff's Civil Rights Complaint Pursuant to 42 U.S.C.
§ 1983, filed May 14, 2019 (Doc.
6)(“Supplement”); and (iii) the Plaintiff's
Application to Proceed in District Court without Prepaying
Fees or Costs, filed September 18, 2018 (Doc.
3)(“Application”). Plaintiff Victor Smith appears
pro se. For the reasons set out below, the Court will: (i)
grant Plaintiff Victor Smith's Application; and (ii)
dismiss this case without prejudice for failure to state a
claim upon which relief can be granted.
filed his Amended Complaint using the form “Civil
Rights Complaint Pursuant to 42 U.S.C. § 1983.”
Smith alleges: (i) “I was the only person of
color other students heard staff say the[y] only wanted
non-black and gay & lesbian people to utilize their
facilities”; (ii) “only person ever in the Women
Resource Center other students heard them saying negative
remarks reg. Color of skin”; (iii) “Besides being
the only human being of color I heard on one occasion where a
white female empl. stated that she never saw a black guy
utilize the computer facilities and that it felt
awkward.” Amended Complaint ¶ A.2, at 1,
¶¶ A.3, B.1, at 4. The Amended Complaint also
states “additional [alleged violations of
constitutional rights and supporting facts] to be provided
later.” Amended Complaint ¶ C.1 at 3.
filed his Supplement using the form “Civil Rights
Complaint Pursuant to 42 U.S.C. § 1983.” Smith
alleges: (i) “On June 14, 2017 the Dean of Student[s]
wrote me letter charge with violating Code of Conduct 2.1 and
2.17 fals[e]ly accusing me of actions . . . . physically
harming the person and/or property of others . . . or which
cause reasona[ble] apprehension of physical harm”; (ii)
“on 5/31/2017 at 2400 Marble Ave at 11:12 a.m.
[Defendant] Patricia Young acted in a matter and engage[d] in
actions against the criminial [sic] code”; and (iii) on
May 31, 2017 at the Health and Science Center on the campus
at the University of New Mexico UNM PD Officer Patricia young
approached me (Victor Smith) I was all alone at that time she
indicated and falsely accussed [sic] me of incorrect
claims.” Smith references: (i)
“Discrimination”; (ii) “Harrassment
[sic]”; (iii) “Article 8 of the
Constitution”; (iv) “42 USC 1983”; and (v)
“USC 42-1985.” Supplement at ¶ C.1, at 3,
¶¶ A.4, B.1, at 4.
Application states that: (i) his “[a]verage monthly
income amount during the past 12 months” was
“$0.00”; (ii) he is unemployed; (iii) his
“average monthly expenses” total
“$525.00”; and (iv) he has “Aprox
$23.00” in a bank account. Application at 1-5. Smith
signed an “Affidavit in Support of the Application,
” stating that he “is unable to pay the costs of
these proceedings” and declaring under penalty of
perjury that the information he provided in the Application
is true. Application at 1.
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 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. App'x. 879, 884
(10th Cir. 2010)(quoting 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 Department, 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 status).
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).