United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL AND TO SHOW
C. BRACK SENIOR U.S. DISTRICT JUDGE
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.
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 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.
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.
of Proceedings In Forma Pauperis
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”).
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.”).
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.
of Pending Motions
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
Power to Impose Filing Restrictions
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 ...