Mohammad v. Albuquerque Police Department et al
MEMORANDUM OPINION AND ORDER denying 31 MOTION for Leave to Appeal in forma pauperis by District Judge James O. Browning. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. CIV 16-0764 JB/WPL
ALBUQUERQUE POLICE DEPARTMENT;
THE METROPOLITAN COURT and
METROPOLITAN DENTENTION CENTER,
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR LEAVE
TO PROCEED IN FORMA PAUPERIS ON APPEAL
THIS MATTER comes before the Court on Plaintiff’s Motion to Proceed on Appeal
Without Prepayment of Costs or Fees (non-PLRA), filed November 15, 2016 (Doc.
31)(“Motion”). Plaintiff Khalid Mohammad filed claims against Defendants Albuquerque, New
Mexico Police Department; the Albuquerque, New Mexico Metropolitan Court; and the
Bernalillo County Metropolitan Detention Center, pursuant to 42 U.S.C. § 1983, the New
Mexico Tort Claims Act, NMSA § 41-4-12, and the Fourteenth Amendment to the Constitution
of the United States of America. See Amended Complaint Pursuant to § 41-13-1 through § 4113-3 NMSA 1978 ¶¶ 1-57, at 1-17, filed July 1, 2016 (Doc. 1-2)(“Complaint”). All three entities
filed motions to dismiss. See Defendant Metropolitan Detention Center’s Motion to Dismiss and
Supporting Memorandum, filed July 6, 2016 (Doc. 12); Defendant Albuquerque Police
Department’s (Non-Suable Entity) Motion to Dismiss Plaintiff’s Complaint with Prejudice, and
Memorandum to Support, filed July 6, 2016 (Doc. 13); Metropolitan Court’s Motion to Dismiss,
filed July 8, 2016 (Doc. 14). On September 16, 2016, the Court granted the motions to dismiss
and allowed Mohammad twenty-one days to file an amended complaint. See Memorandum
Opinion and Order, filed September 16, 2016 (Doc. 28)(“MOO”). Mohammad did not file an
amended complaint. The Court entered Final Judgment on October 31, 2016, and dismissed the
case without prejudice. See Final Judgment, filed October 31, 2016 (Doc. 29).
“In order to succeed on [a motion for leave to proceed in forma pauperis on appeal], an
appellant must show a financial inability to pay the required filing fees and the existence of a
reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal.”
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). “An appeal may not be taken
[IFP] if the trial court certifies in writing that it is not taken in good faith.”
§ 1915(a)(3). “The Supreme Court has held that good faith is to be judged by an objective
standard, for review of any issue ‘not frivolous.’” Spearman v. Collins, 500 F. App’x 742, 743
(10th Cir. 2012)(quoting Coppedge v. United States, 369 U.S. 438, 445 (1962)). “An appeal is
frivolous when the result is obvious, or the appellant’s arguments of error are wholly without
merit.” Spearman v. Collins, 500 F. App’x at 743 (quotation omitted). See also Thompson v.
Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002)(noting that an appeal is frivolous if it “lacks an
arguable basis in either law or fact”).
Mohammad’s financial affidavit shows that he is unable to pay the filing fee. See Motion
at 2-10. Mohammad did not, however, fill out the portion of the IFP application that provides
space to identify “issues on appeal.” See Motion at 2. Because Mohammad made no statement
of issues on appeal, he has not identified any argument of error regarding the Court’s dismissal
of his claims. He does not summarize facts, restate causes of action, or make any attempt at
isolating reviewable issues. Accordingly, the Court concludes that Mohammad’s appeal is not
taken in good faith and therefore denies his Motion.
IT IS ORDERED that the Plaintiff’s Motion to Proceed on Appeal Without Prepayment
of Costs or Fees (non-PLRA), filed November 15, 2016 (Doc. 31), is denied.
UNITED STATES DISTRICT JUDGE
Parties and Counsel:
Albuquerque, New Mexico
Plaintiff, pro se
Allison M. Beaulieu
City of Albuquerque
Albuquerque, New Mexico
Attorney for Defendant Albuquerque Police Department
Law Office of Michael Dickman
Santa Fe, New Mexico
Attorney for Defendant Metropolitan Court
Carlos M. Quinones
Quinones Law Firm
Santa Fe, New Mexico
Attorney for Defendant Bernalillo County Metropolitan Detention Center
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