United States District Court, D. New Mexico
Michael Davitt Mesquite, Nevada Plaintiff pro se
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court, under 28 U.S.C. Â§ 1915 and
rule 12(b)(6) of the Federal Rules of Civil Procedure, on:
(i) the Plaintiffâs Application to Proceed in District Court
without Prepaying Fees or Costs, filed January 25, 2019 (Doc.
2)(âApplicationâ); and (ii) the Plaintiffâs Civil Rights
Complaint Pursuant to 42 U.S.C. Â§ 1983, filed January 25,
2019 (Doc. 1)(âComplaintâ). Plaintiff Michael Davitt appears
pro se. For the reasons set out below, the Court will: (i)
grant Davittâs Application; and (ii) grant Davitt leave to
amend his Complaint.
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.
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.
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. 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).
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).
REGARDING PRO SE LITIGANTS
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. ...