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Lucero v. United States

United States District Court, D. New Mexico

December 5, 2019

CHLOE LUCERO, Plaintiff,
v.
UNITED STATES, et al., Defendants.

          MEMORANDUM OPINION AND ORDER OF DISMISSAL AND TO SHOW CAUSE

          ROBERT C. BRACK SENIOR U.S. DISTRICT JUDGE

         THIS MATTER comes before the Court on Plaintiff's Complaint (Doc. 1), filed November 14, 2019, and on Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2), filed November 14, 2019 (“Application”). For the reasons stated below the Court GRANTS the Application, DISMISSES this case without prejudice, DENIES the pending motions as moot, and ORDERS Plaintiff to show cause why the Court should not impose filing restrictions.

         Application to Proceed in forma pauperis

         The 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)). “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.” Id. at 339.

         The Court grants Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs. Plaintiff signed an affidavit stating she is unable to pay the costs of these proceedings and provided the following information: (i) Plaintiff's monthly income is $1, 134.00; (ii) Plaintiff is unemployed; (iii) Plaintiff's monthly expenses total $1, 525.00; and (iv) Plaintiff has $2.00 in cash and $41.01 in bank accounts. The Court finds that Plaintiff is unable to pay the costs of this proceeding because her monthly expenses exceed her monthly income, she is unemployed, and she has very little money in cash and in bank accounts.

         Dismissal of Proceedings In Forma Pauperis

         Plaintiff 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 [in forma pauperis] 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”).

         The Complaint alleges that the “Office of the Attorney General and his assigned are violating” various provisions of the Constitution. (Doc. 1 at 1.) While the Complaint quotes portions of those provisions, it fails to state with any particularity what each of the unnamed Defendants did to Plaintiff, when the Defendants committed those alleged unspecified actions, or how those actions harmed Plaintiff. Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cty. Justice Ctr., 492 F.3d 1158, 1163 (10th Cir. 2007) (“[T]o state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendant's action harmed him or her; and, what specific legal right the plaintiff believes the defendant violated.”).

         The Court dismisses this case for failure to state a claim. It would be futile to allow Plaintiff an opportunity to amend her Complaint because the Court has recently explained to Plaintiff how to properly state a claim in this Court. See Lucero v. Landis, No. 2:18-cv-00788-RB-GBW, Doc. 11 at 4, (D.N.M. Nov. 8, 2018) (quoting Nasious, 492 F.3d at 1163). Plaintiff ignored the Court's explanation and filed a Complaint which fails to state a claim.

         Denial of Pending Motions

         In addition to her motion to proceed in forma pauperis, Plaintiff has 15 other motions pending in this case. They include motions to appoint counsel, to amend the motion to appoint counsel, to participate in the Court's electronic filing system, to enjoin Defendants, to vacate the appointment of a United States Magistrate Judge to this case and determine this matter with a panel of three judges, to waive the requirement that service be done by registered or certified mail, for the undersigned to recuse, and for subpoenas duces tecum. (Docs. 2; 4; 6-13; 16-19.) Because it is dismissing this case, the Court denies the pending motions as moot.

         Court's Power to Impose Filing Restrictions

         The Court of Appeals for the Tenth Circuit has discussed the Court's power to impose filing restrictions and the procedure for imposing filing restrictions:

“[T]he right of access to the courts is neither absolute nor unconditional and there is no constitutional right of access to the courts to prosecute an action that is frivolous or malicious.” Tripati v. Beaman,878 F.2d 351, 353 (10th Cir. 1989) (per curiam) (citation omitted). “There is strong precedent establishing the inherent power of federal courts to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances.” Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir. 1986). “Even onerous conditions may be imposed upon a litigant as long as they are designed to assist the . . . court in curbing the particular abusive behavior involved, ” except that they “cannot be so burdensome . . . as to deny a litigant meaningful access to the courts.” Id. (brackets and internal quotation marks omitted). “Litigiousness alone will not support an injunction restricting filing activities. However, injunctions are proper where the litigant's abusive and lengthy history is properly set forth.” Tripati, 878 F.2d at 353 (citations omitted). “[T]here must be some guidelines as to what [a party] must do to ...

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