United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER comes before the Court on Plaintiff's
Civil Rights Complaint Pursuant to 42 U.S.C. Â§ 1983, Doc. 1,
filed August 5, 2019, and on Plaintiff's Application to
Proceed in District Court Without Prepaying Fees or Costs,
Doc. 2, filed August 5, 2019 ("Application").
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 F.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 F.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....” See 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.
signed an affidavit declaring that she is unable to pay the
costs of these proceedings and stated: (i) her monthly income
is $192.00; (ii) her monthly expenses total $632.00; and she
is not employed. The Court grants Plaintiff's Application
to proceed in forma pauperis because Plaintiff is
unemployed and her monthly expenses exceed her low monthly
of the Case
alleges that employees at the Santa Fe County Adult Detention
Facility violated her civil rights by strip-searching her,
not providing her with medical care, tampering with her food
tray, refusing to put her in protective custody, and
threatening her. See Complaint at 7-9. Santa Fe
County Adult Detention Facility is the sole defendant.
See Complaint at 1-2.
Complaint fails to state a claim against Defendant Santa Fe
County Adult Detention Facility because is not a separate
suable entity. “Generally, governmental sub-units are
not separate suable entities that may be sued under §
1983.” Hinton v. Dennis, 362 F.App'x 904,
907 (10th Cir. 2010) (citing Martinez v. Winner, 771
F.2d 424, 444 (10th Cir. 1985) (holding that City and County
of Denver would remain as a defendant and dismissing
complaint as to the City of Denver Police Department because
it is not a separate suable entity).
is proceeding in forma pauperis. The statute
governing proceedings in forma pauperis states
"the court shall dismiss the case at any time if the
court determines that . . . the action . . . fails to state a
claim on which relief may be granted." 28 U.S.C. §
1915(e)(2); see also Webb v. Caldwell, 640
F.App'x 800, 802 (10th Cir. 2016) ("We have held
that a pro se complaint filed under a grant of ifp
can be dismissed under § 1915(e)(2)(B)(ii) for failure
to state a claim . . . only where it is obvious that the
plaintiff cannot prevail on the facts he has alleged and it
would be futile to give him an opportunity to amend").
Because Plaintiff failed to state a claim against Defendant
Santa Fe County Adult Detention Facility, and it would be
futile to give Plaintiff an opportunity to amend the
Complaint against Defendant Santa Fe County Adult Detention
Facility, the Court must dismiss this case.
IS ORDERED that:
Plaintiffs Application to Proceed in District Court Without
Prepaying Fees or Costs, Doc. 2, filed August 5, 2019, is
This case is DISMISSED ...