United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS AND TO SHOW CAUSE
HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE
MATTER is before the Court on Plaintiff Travist
Hawkin's Civil Rights Complaint Pursuant to
42 U.S.C. § 1983 (the “Complaint”),
(Doc. 1), filed December 19, 2019, and Plaintiff's
Application to Proceed in District Court Without
Prepaying Fees or Costs (the
“Application”), (Doc. 3), filed December 19,
2019. Having reviewed Plaintiff's filings and the
relevant law, the Court finds Plaintiff's Application is
well-taken and shall be GRANTED. However,
Plaintiff is instructed to show cause why his Complaint
should not be dismissed.
Application 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)). “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.
Plaintiff signed an affidavit stating he is unable to pay the
costs of these proceedings and provided the following
information: (i) Plaintiff's monthly income is $500.00;
(ii) Plaintiff's monthly expenses total $475.00; (iii)
Plaintiff has $100.00 in cash and $12.00 in bank accounts;
and (iv) Plaintiff's daughter, age six, relies on
Plaintiff for support. (Doc. 3). The Court finds that
Plaintiff is unable to pay the costs of this proceeding
because his low monthly income only slightly exceeds his
monthly expenses, he has very little money in cash and in
bank accounts, and Plaintiff's daughter relies on
Plaintiff for support.
Dismissal 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 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").
is a defendant in two state-court misdemeanor cases presided
over by Defendant Calicoat, a state court judge, and
prosecuted by Defendant Perozyoski, a state assistant
district attorney. Plaintiff alleges that Defendant Calicoat
violated Plaintiff's due process rights during the state
court proceedings. Plaintiff further alleges that Defendant
Perozyoski fraudulently created the charges against Plaintiff
and prosecuted the cases without proper jurisdiction.
Plaintiff seeks the following relief: (i) dismissal of the
cases with prejudice; and (ii) monetary compensation in the
amount of $2.3 million. State court records reflect that
Plaintiff was convicted at a plea hearing in Eddy County
Magistrate Court on December 23, 2019. The records do not
indicate whether the state court proceeding is ongoing, or
whether Plaintiff is appealing the Magistrate Court
Complaint fails to state a claim against Defendant Judge
Calicoat for monetary compensation because Defendant Calicoat
is immune from monetary damages claims. See Sawyer v.
Gorman, 317 Fed.Appx. 725, 727 (10th Cir. 2008)
(quoting Mireles v. Waco, 502 U.S. 9, 11-12 (1991))
(“[S]tate court judges are absolutely immune from
monetary damages claims for actions taken in their judicial
capacity, unless the actions are taken in the complete
absence of all jurisdiction.”). Plaintiff alleges that
Defendant Judge “Calicoat turned a just eye away from
the truth allowing a case to be prosecuted and (ruling on the
case) with no jurisdiction properly envoked [sic] or corpus
delicti established among other things, ” entered a
not-guilty plea on behalf of Plaintiff, appointed a public
defender to represent Plaintiff, and “ruled” on
Plaintiff's case. Complaint at 1, 4-5, 8.
allegations show that Defendant Calicoat's actions were
taken in her judicial capacity. While Plaintiff alleges
Defendant Calicoat acted “with no jurisdiction properly
envoked, ” [sic] he does not allege that Defendant
Calicoat acted “in the complete absence of all
jurisdiction.” See Stump v. Sparkman, 435 U.S.
349, 357 (1978) (finding there was not a clear absence of
“all jurisdiction” because a state statute, while
it did not itemize types of cases the state court could hear,
gave the state court a broad grant of jurisdiction); N.M.S.A.
§ 35-3-4 (“Magistrates have jurisdiction in all
cases of misdemeanors and petty misdemeanors”).
Complaint also fails to state a claim against Defendant
Assistant District Attorney Perozyoski for monetary
compensation because Defendant Perozyoski is immune from
monetary damages claims. See Mink v. Suthers, 482
F.3d 1244, 1261 (10th Cir. 2007) (“[A] prosecutor is
entitled to absolute immunity for those actions that cast him
in the role of an advocate initiating and presenting the
government's case.”). Plaintiff alleges Defendant
Assistant District Attorney “Perozyoski created a claim
and prosecuted that claim against” Plaintiff. Complaint
at 2. There are no allegations that Defendant Perozyoski did
anything other than initiate and present the state's
Complaint does not allege sufficient facts showing that the
Court has jurisdiction to dismiss the state cases. The
Younger abstention doctrine "dictates that
federal courts not interfere with state court proceedings ...
when such relief could adequately be sought before the state
court." Rienhardt v. Kelly, 164 F.3d 1296, 1302
(10th Cir. ...