BELCHER v. WILSON

Filing 5

ORDER Pla's Motion to Proceed In forma Pauperis 2 is denied. This case is dismissed as frivolous. Signed by JUDGE RICHARD SMOAK on 8/16/2010. (sea)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION NATHANIEL PAUL BELCHER, Plaintiff, v. MARY N. WILSON, Defendant. ___________________________________/ ORDER Before me are the Complaint (Doc. 1) and Motion For Leave To Proceed In Forma Pauperis (Doc. 2). This case was filed within one week after another case filed by Plaintiff alleging the same facts against the same defendant was dismissed as frivolous. See Case No. 5:10cv202-RS/AK. I find that the motion to proceed in forma pauperis should again be denied and this case dismissed as frivolous. The screening process under 28 U.S.C. §1915 applies to non-prisoner pro se litigants who are proceeding in forma pauperis. Boyington v. Geo Group, Inc., 2009 WL 3157642 (M.D. Fla.), citing Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002) (dismissals under 28 U.S.C. 1915 apply to non-prisoners, even if fee assessment provisions do not). "In order to authorize a litigant to proceed in forma pauperis, the court must make two determinations: first, whether the litigant is unable to pay the costs of commencing this action; and second, whether the action is frivolous or malicious." Dycus v. Astrue, 2009 WL 47497, at *1 (S.D.Ala.2009). An application to proceed in forma pauperis may be denied if the plaintiff either fails to satisfy the poverty requirement or if plaintiff's claim is frivolous. Martinez v. Kristi Kleaner's Inc., 364 F.3d 1305, CASE NO. 5:10cv211/RS-AK

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1306 (11th Cir.2004); see also Attwood v. Singletary, 105 F.3d 610, 613 (11th Cir.1997) (stating that a court `may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious). A claim is frivolous if it is based on an indisputably meritless legal theory. Neitzke v. Williams, 490 U.S. 319, 317 (1989) (applying section 1915). This circuit has defined a frivolous appeal under section 1915 as being one " `without arguable merit.' " Harris v. Menendez, 817 F.2d 737, 739 (11th Cir.1987) (quoting Watson v. Ault, 525 F.2d 886, 892 (5th Cir.1976)). " `Arguable means capable of being convincingly argued.' "Moreland v. Wharton, 899 F.2d 1168, 1170 (11th Cir.1990) (per curiam) (quoting Menendez, 817 F.2d at 740 n. 5); see Clark v. State of Ga. Pardons and Paroles Bd, 915 F.2d 636, 639 (11th Cir. 1990) (lawsuit is frivolous if the plaintiff's chances of ultimate success are slight); see also Weeks v. Jones, 100 F.3d 124, 127 (11th Cir.1996) (stating that "[f]actual allegations are frivolous for purpose of [28 U.S.C.] 1915(d) when they are `clearly baseless;' legal theories are frivolous when they are `indisputably meritless.' ") (citations omitted). The complaint is brought against a private person for "perjury" that resulted in Plaintiff having to move. As with the previously dismissed case, Plaintiff has failed to adequately state any claims for relief. IT IS ORDERED: 1. Plaintiff's Motion To Proceed In Forma Pauperis (Doc. 2) is denied. 2. This case is dismissed as frivolous. ORDERED on August 16, 2010.

/S/ Richard Smoak RICHARD SMOAK UNITED STATES DISTRICT JUDGE
Case No: 5:10-cv-00202-RS -AK