United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ, UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Plaintiff's
Civil Rights Complaint Pursuant to 42 U.S.C. § 1983,
Doc. 1, filed September 26, 2019 (“Complaint”),
and on Plaintiff's Application to Proceed in District
Court Without Prepaying Fees or Costs, Doc. 2, filed
September 2, 2019 (“Application”).
alleges that Defendant VA Hospital “breached its duty
to provide safe care resulting in left ear hearing loss and
tinnitus, ” and that the medical equipment used during
his treatment “was malfunctioning due to either
operator error from improper handling and dropping of the
magnet, manufacture[r']s technicalities, improper
equipment or all three.” Complaint at 7. Plaintiff
attached a copy of the tort claim that he filed on February
1, 2019, and states that:
when I called and spoke with a government representative they
informed me that after 6 months I have the right to file in
federal court if nothing had been done. Lo and Behold not
only had the government not done anything they informed me
that they were working on tort claims from over 2 years ago
and implied that would continue to be the case as they were
not hiring anybody new.
at 8-9. Defendant VA Hospital is the only defendant named in
Court will dismiss this case without prejudice for lack of
subject matter jurisdiction because “[t]he United
States is the only proper defendant in a federal tort claims
action” and Plaintiff has not named the United States.
Gaines v. Pearson, 516 Fed.Appx. 724, 726 (10th Cir.
2013) (concluding that the district court lacked subject
matter jurisdiction of plaintiff's [Federal Tort Claims
Act] claim against the federal defendants; the United states
is the only proper defendant and plaintiff had not named the
United States) (citing Oxendine v. Kaplan, 241 F.3d
1272, 1275 n.4 (10th Cir. 2001)). The Court, however, will
grant Plaintiff leave to file an amended complaint naming the
to Proceed 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 that the
person possesses and a statement 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.Appx. 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 Fed.Appx. 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, 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.Appx. 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
signed an affidavit declaring that he is “unable to pay
the costs of these proceedings.” Application at 1.
However, Plaintiff also indicates that his monthly income
exceeds his monthly expenses by $925.00, and that he has $8,
000.00 in a checking account. See Application at 2,
5. Where the Application form prompts Plaintiff to
“[p]rovide any other information that will help explain
why you cannot pay the costs of these proceedings, ”
Plaintiff wrote: “Im a disabled veteran with an
honorable discharge and the VA hospital caused harm to me
they should pay.” [sic] Application at 5.
Court will deny Plaintiff's Application to proceed in
forma pauperis because it appears that Plaintiff,
according to his own accounting, has sufficient income and
savings to pay the filing fee and service costs.
IS THEREFOR ORDERED that:
Plaintiff's Civil Rights Complaint Pursuant to 42 U.S.C.
§ 1983, Doc. 1, filed September 26, 2019, is
DISMISSED without prejudice. Plaintiff may,
within 45 days of receiving service of this Order, file an
amended complaint naming the proper party. Failure to timely