United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Court has considered Plaintiff's Civil Rights Complaint
Pursuant to 42 U.S.C. § 1983, Doc. 1, filed August 12,
2019 (“Complaint”), and Plaintiff's
Application to Proceed in District Court Without Prepaying
Fees or Costs, Doc.4, filed August 27, 2019
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 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....” 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 he is unable to pay the
costs of these proceedings and stated: (i) his monthly income
is $800.00; (ii) his monthly expenses total $1, 000.00; and
(iii) he is not employed. The Court will grant
Plaintiff's Application to proceed in forma
pauperis because Plaintiff is unemployed and his monthly
expenses exceed his low monthly income.
of the Case
alleges the following facts:
When [Defendant U.N.M. Police Officer] Patricia Young
approached me on May 31, 2017 in the Health and Science
Center she said to me I want to get rid of you kind of people
and pointed her finger at me when she said it. I was the only
Afro-American in the entire lobby at this time. . . . .
On March 1, 2018 [Defendant U.N.M. Police Officer] Mary Anne
Wallace presented and gave me a copy from the dean of
students falsely and literally incorrectly of charging me
#2.1 & 2.17 accusing me of actions physically harming the
person and/or the property of others . . . or which cause
reasonable apprehension of physical harm. . . . .
On March 1, 2018 Mesa Vista Hall Room 1160 (MSC[illegible]
3910) Ap[p]rox. 1:00 pm UNM P.D. Officer [Defendant] Patricia
Young and especially [Defendant] Mary Ann Wallace acted and
engage in actions against the criminal code. Intentionally
targeting someone with a behavior that is meant to alarm
annoy to torment and terrorize. . . . .
On March 1, 2018 on the University of New Main Campus at the
Women's Resource Center Room 1160, four UNMPD Police
Officer two male and the two female were [Defendants]
Patricia Young and Mary Ann Wallace. I [Plaintiff] Victor
Smith was totally alone in the computer pod. Mary Ann Wallace
indicated and incorrect and falsely accused me of incorrect
claims in violation of the 5th Amendment #5 “No person
shall be held to answer for a crime without dye process of
law![”] Amendment #8 “Nor cruel and unusual
punishment inflicted.” Amendment #14 “Nor deny
any person within its jurisdiction the equal protections of
Complaint at 2-3, 5. There are no factual allegations
regarding Defendants Tim May, Nasha Torrez, or Caitlin Henke.
Plaintiff seeks the following relief: (i) “to be
readmitted to the University of New Mexico Main Campus to
further and complete my education;” (ii) “to have
all of those incorrect charges entirely dismissed;” and
(iii) “monetary financial compensation.”
Complaint at 6.
filed his Complaint using the form “Civil Rights
Complaint Pursuant to 42 U.S.C. § 1983.” The form
instructs Plaintiff to “[i]nclude all facts you
consider important, including names of persons involved,
places and dates. Describe exactly how each defendant is
involved.” Complaint at 3. Where the form prompts
Plaintiff to state the “Supporting Facts” for
Count II, Plaintiff wrote “See Attachments.”
Complaint at 3. Because there were no attachments filed with
the Complaint, the Court ordered Plaintiff file a supplement
to his Complaint stating the supporting facts for Count II
and notified ...