United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Plaintiff's
Complaint, Doc. 1, filed January 8, 2020, and on
Plaintiff's Application to Proceed in District Court
Without Prepaying Fees or Costs, Doc. 3, filed January 8,
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 she is unable to pay the
costs of these proceedings and stated: (i) her monthly income
is $450.00; (ii) her monthly expenses total $450.00; (iii)
she is not employed; and (iv) she has no cash and no money in
bank accounts. The Court grants Plaintiff's Application
to proceed in forma pauperis because Plaintiff is
unemployed, her monthly expenses equal her low monthly
income, and she has no cash and no money in bank accounts.
of the Case
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 Fed.Appx.
800, 802 (10th Cir. 2016) ("We have held that a pro se
complaint filed under a grant of ifp 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").
alleges that “Executive Order 13865 published March 29,
2019” states “the Federal Government must provide
warning of an impending EMP [ElectroMagnetic Pulse], protect
against and respond to and recover from the effects of an
EMP.” Complaint at1-2. Plaintiff, who resides in
Phoenix, Arizona, also alleges that Plaintiff has suffered
“electronic harassment and directed energy”
harassment, that there is “evidence for violation of
Executive Order 13865” in the form of medical problems
including burns, that EMPs destroy the environment, and that
“after reviewing both medical documentation and
environmental changes, [Plaintiff's] second-degree burns
are from a directed energy weapon.” Complaint at 4-11.
Plaintiff “is requesting a court order to schedule a
time with the United States Air Force to test (eliminate) the
last set of electromagnetic pulses, frequencies, in violation
of executive Order 13865.” Complaint at 13.
Complaint fails to state a claim. See Nasious v. Two
Unknown B.I.C.E. Agents, at Arapahoe County Justice
Center, 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 only allegation
mentioning Defendants states:
Dr. Kelly D. Hammett, Directed Energy Directorate, and Dr.
Donald A. Shiffler, Chief Scientist, hold positions at the
air force research laboratory, Kirtland air force base,
Albuquerque, New Mexico. The Air Force Research Laboratory
[at Kirtland Air Force Base] has both research and testing
facilities for electromagnetic systems (including
electromagnetic pulse) and directed microwave energy (mm
wave) [sic]. Testing facilities for directed energy and mm
wave are scheduled and located at the air force research
laboratories, total of four locations in the United States,
and can only be scheduled through the U.S. military by
Complaint at 2-3. There are no allegations explaining what
Defendants Hammett and Shiffler did to Plaintiff.
filed essentially the same complaint in a previous action.
See Bragg v. Shiffler, No. 1:19-cv-00360-RB-JHR
(D.N.M. April 9, 2019). The Court dismissed the previous
action without prejudice for failure to state a claim after
quoting the explanation of how to state a claim in
Nasious v. Two Unknown B.I.C.E. Agents and