Kerns v. University of New Mexico

Filing 6

MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez GRANTING 2 MOTION for Leave to Proceed in forma pauperis, DISMISSING without Prejudice 1 Complaint and DENYING AS MOOT 5 MOTION for Order to add Parties to complaint. See Order for Specifics. (gr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MARY G.A. KERNS,
Plaintiff,
v.

No. 16cv1258 MV/KK

UNIVERSITY OF NEW MEXICO,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO PROCEED IN FORMA PAUPERIS
THIS MATTER comes before the Court on pro se Plaintiff’s Application to Proceed in
District Court Without Prepaying Fees or Costs, Doc. 2, filed November 17, 2016 (“Application”),
on her Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, Doc. 1, filed November 17, 2016
(“Complaint”), and on her Motion in Action, Doc. 5, filed December 21, 2016 (“Motion to Add
Parties”).

For the reasons stated below, the Court will GRANT Plaintiff’s Application,

DISMISS Plaintiff’s Complaint without prejudice, and DENY Plaintiff’s Motion to Add Parties
as moot. Plaintiff shall have 21 days from entry of this Order to file an amended complaint.
Failure to timely file an amended complaint may result in dismissal of this case without prejudice.
Application to Proceed in forma pauperis
The 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....” 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.
The Court will grant Plaintiff’s Application to Proceed in District Court Without Prepaying
Fees or Costs. Plaintiff signed an affidavit declaring that she is unable to pay the costs of these
proceedings and provided the following information: (i) her average monthly income during the
past 12 months was $333.00 and her income amount expected next month is $0.00; (ii) she owns
no assets; (iii) her monthly expenses are $0.00; and (iv) she has no cash and has $12.00 in a bank
account. Because of her low monthly income during the past year with no income expected next
month, the Court finds that Plaintiff is unable to prepay the fees to initiate this action.
Dismissal of Proceedings In Forma Pauperis
The statute governing proceedings in forma pauperis requires federal courts to dismiss an
in forma pauperis proceeding that “is frivolous or malicious; ... fails to state a claim on which
relief may be granted; ... or seeks monetary relief against a defendant who is immune from such
relief.” See 28 U.S.C. § 1915(e)(2). “Dismissal of a pro se complaint for failure to state a claim is

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proper 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.” Kay v. Bemis, 500 F.3d 1214, 1217 (10th
Cir. 2007). “In determining whether a dismissal is proper, we must accept the allegations of the
complaint as true and construe those allegations, and any reasonable inferences that might be
drawn from them, in the light most favorable to the plaintiff.” Kay v. Bemis, 500 F.3d at 1217.
The Court looks to the specific allegations in the complaint to determine whether they plausibly
support a legal claim for relief, i.e. the factual allegations must be enough to raise a right to relief
above the speculative level. See id. at 1218 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007)). Dismissal of an in forma pauperis complaint as frivolous is not an abuse of discretion
based on a determination that the pro se litigant did not state a viable legal claim and that the
complaint consisted of little more than unintelligible ramblings.

Triplett v. Triplett, 166

Fed.Appx. 338, 339-340 (10th Cir. 2006). However, “pro se litigants are to be given reasonable
opportunity to remedy the defects in their pleadings.” Hall v. Bellmon, 935 F.2d 1106, 1110 n.3
(10th Cir. 1991).
Plaintiff filed her Complaint using a form Civil Rights Complaint Pursuant to
42 U.S.C. § 1983 and alleges the following. Plaintiff was a student at the University of New
Mexico and:
By the end of January 2015, I had unexpected events that happened in my personal
life . . . I went to the Dean of Students office and asked what I could do to get the
semester off, and I would return in the fall. I went through all the proper channels
at the school to make sure that I was doing the right thing for all my scholarships,
financial aid, and my credits. The University gave wrong information to their
policies and the law involving the Financial Aid office, the Bursar office, and the
Dean of Students office.
Complaint at 3. Plaintiff later received an unexpected bill from the University of New Mexico for

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over $3,000.00. The allegations in the Complaint suggest that University of New Mexico will not
release Plaintiff’s transcript until she pays the bill. Plaintiff states: “I am trying to attempt to sue
the University of New Mexico for discrimination of having a learning disability.” Complaint at 3.
Plaintiff does not cite the statutory basis for her suit. Construing her Complaint liberally,
it appears she may be making a claim pursuant to the Americans with Disabilities Act and/or the
Rehabilitation Act.
“Title III of the ADA prohibits discrimination against persons with disabilities in
places of public accommodation.” Colorado Cross Disability Coalition v.
Hermanson Family Ltd. P'ship I, 264 F.3d 999, 1001 (10th Cir.2001).
“Discrimination under Title III specifically includes the failure to make reasonable
modifications in policies, practices, or procedure to accommodate a disabled
individual, unless the entity can demonstrate that making such modifications would
fundamentally alter the nature of the services.” Mershon v. St. Louis Univ., 442
F.3d 1069, 1076 (8th Cir.2006) (citing 42 U.S.C. § 12182(b)(2)(A)(ii)). “Likewise,
the Rehabilitation Act requires reasonable accommodations when an ‘otherwise
qualified’ disabled student would otherwise be denied meaningful access to a
university.” Id. (internal quotation marks and citation omitted). Neither Title III of
the ADA nor the Rehabilitation Act require a graduate school to admit “a disabled
student who cannot, with reasonable accommodations, otherwise meet the
academic standards of the program.” Id.
Thus, in the higher education context, a person alleging a failure to
accommodate under Title III or the Rehabilitation Act must show
(1) that the plaintiff is disabled and otherwise qualified
academically, (2) that the defendant is a private entity that owns,
leases or operates a place of public accommodation (for ADA
purposes) and receives federal funding (for Rehabilitation Act
purposes), and (3) that the defendant failed to make reasonable
modifications that would accommodate the plaintiff's disability
without fundamentally altering the nature of the public
accommodation[.]
Id. (internal quotation marks omitted).
Doe v. Oklahoma City University, 406 Fed.Appx. 248, 250 (10th Cir. 2010); Buhendwa v. Univ. of
Colorado at Boulder, 214 Fed.Appx. 823, 827 (10th Cir. 2007) (“To establish a cause of action

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under the Rehabilitation act, a plaintiff must show (1) that he [or she] is a handicapped individual
under the Act, (2) that he [or she] is otherwise qualified for the [benefit] sought, (3) that he [or she]
was [discriminated against] solely by reason of his [or her] handicap, and (4) that the program or
activity in question receives federal financial assistance”).
The Court will dismiss the Complaint without prejudice for failure to state a claim for the
following reasons. Plaintiff alleges that employees of the University of New Mexico gave her
incorrect information regarding their policies and financial aid laws which, consequently, resulted
in her receiving a bill from the University of New Mexico. The University of New Mexico will
not release Plaintiff’s transcript until she pays the bill. Although Plaintiff asserts she is suing the
University of New Mexico “for discrimination of having a learning disability,” she has not alleged
that she is disabled under the ADA or the Rehabilitation Act. Nor has she alleged that the
University of New Mexico, in providing her with information regarding financial aid and
withholding her transcripts until she pays her bill, failed to make reasonable modifications that
would accommodate her disability or that the University of New Mexico discriminated against her
solely by reason of her handicap.
Plaintiff may file an amended complaint within 21 days of entry of this Order. Failure to
timely file an amended complaint may result in dismissal of this case without prejudice.
Motion to Add Parties
Plaintiff filed a Motion to Add Parties to her Complaint. See Doc. 5. The Court will
deny the Motion to Add Parties as moot because it is dismissing Plaintiff’s Complaint without
prejudice and granting Plaintiff leave to file an amended complaint. Plaintiff may include the
new parties in her amended complaint.

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Service on Defendant
Section 1915 provides that the “officers of the court shall issue and serve all process, and
perform all duties in [proceedings in forma pauperis]”). 28 U.S.C. § 1915(d). Rule 4 provides
that:
At the plaintiff’s request, the court may order that service be made by a United
States marshal or deputy marshal or by a person specially appointed by the court.
The court must so order if the plaintiff is authorized to proceed in forma pauperis
under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.
Fed. R. Civ. P. 4(c)(3).
The Court will not order service of Summons and Complaint on Defendant at this time.
The Court will order service if Plaintiff timely files an amended complaint which states a claim.
IT IS ORDERED that Plaintiff’s Application to Proceed in District Court Without
Prepaying Fees or Costs, Doc. 2, filed November 17, 2016, is GRANTED.
IT IS ALSO ORDERED that Plaintiff’s Civil Rights Complaint Pursuant to
42 U.S.C. § 1983, Doc. 1, filed November 17, 2016, is DISMISSED without prejudice.
Plaintiff may file an amended complaint within 21 days of entry of this Order.
IT IS FURTHER ORDERED that Plaintiff’s Motion in Action, Doc. 5, filed
December 21, 2016 (“Motion to Add Parties”), is DENIED as moot.

__________________________________
MARTHA VÁZQUEZ
UNITED STATES DISTRICT JUDGE

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