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Davitt v. Doe

United States District Court, D. New Mexico

September 25, 2019

MICHAEL DAVITT, Plaintiff,
v.
JANE DOE, Defendant.

          Michael Davitt Mesquite, Nevada Plaintiff pro se

          MEMORANDUM OPINION AND ORDER

         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 Application to Proceed in District Court without Prepaying Fees or Costs, filed January 25, 2019 (Doc. 2)(“Application”); and (ii) the Plaintiff’s Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, filed January 25, 2019 (Doc. 1)(“Complaint”). Plaintiff Michael Davitt appears pro se. For the reasons set out below, the Court will: (i) grant Davitt’s Application; and (ii) grant Davitt leave to amend his Complaint.

         PROCEDURAL BACKGROUND

         Davitt filed his Complaint using the form “Civil Rights Complaint Pursuant to 42 U.S.C. § 1983.” Davitt asserts an "8th Amendment of the U.S. Constitution - Cruel & Unusual Punishment” claim against a “Medical Screener” at the Otero Federal Prison in Chaparral, New Mexico, who is "responsible for screening new prisoners for medical problems” Complaint ¶ A(2) at 1. Davitt alleges: “Plaintiff exersized [sic] his legal right to deny a medical screening and the medical screener ordered my mattress be taken from me, for 11 days as well as my clothing, and made me sleep on a steel bed frame.” Complaint ¶ B(1) at 2-3.

         Davitt's Application states that: (i) he is “unable to pay the costs of these proceedings; (ii) he is unemployed; (iii) his “[a]verage monthly income amount during the past 12 months” is $916.00 in “Disability;” (iv) he has “$07.00” in cash and “$7” in a bank account;” and (v) his “average monthly expenses” total $1, 156.00. Application at 1-5. Davitt signed an “Affidavit in Support of the Application, ” declaring under penalty of perjury that the information he provides 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. Kan., 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 status).[1]

         The district court may grant a motion to proceed IFP even if the court dismisses 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 PRO SE LITIGANTS

         When a party proceeds pro se, the district court construes his or her pleadings liberally, and holds them to a “less stringent standard than [that standard 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 [the 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 should liberally construe the pro se litigant’s factual allegations. See Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992). The Court will not, however, “assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d at 1110. ...


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