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Smith v. Torrez

United States District Court, D. New Mexico

September 16, 2019

VICTOR SMITH, Plaintiff,
v.
NASHA TORREZ, KELLY DAVIS, GREG GOLDEN, PATRICIA YOUNG, MARY ANN WALLACE, JESSICA HIDALGO HOLLAND, CAITLIN HENKE, Defendants.

          Victor Smith Albuquerque, New Mexico Plaintiff pro se

          MEMORANDUM OPINION AND ORDER OF DISMISSAL

         THIS 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.

         PROCEDURAL BACKGROUND

         Smith 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.

         Smith 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.

         Smith's 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.

         LAW REGARDING PROCEEDINGS IN FORMA PAUPERIS

         The 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).[1]

         The 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).

         LAW REGARDING ...


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